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HomeMy WebLinkAbout3/10/1998PLANNING OMMISSIO] AGENDA MARCH 10, 1998 7:00 P.M. COUNTER COPY DO NOT REMOV] South Coast Air Quality Management District Auditorium 21865 East Copley Drive Diamond Bar, California Changan Vice Chairman Commissioner Commissioner Commissioner Joe Ruzicka Joe McManus Steven Tye Georw Kuo Ste W Nelson Copies of staff reports or other written document Division of the Dept. of Community &Developation relating to agenda items are on file in the Planning ment Services, located at 11660 E. Copley Drive, Suite 190, and are available for public inspection. If you have questions regarding an agenda item, please call (909) 396-5676 during regular business hours. In an effort to comply with the requirements of Title 11 of the Americans with Disabilities Act of 1990, the City of Diamond Bar requires that any person in need of an t accomodation(s) in order to communicate at a Ci y yPe of special equipment, assistance or Development Services at (909) 396-5676 a t mulm of 72 hours prior f r the sm the cheduled eduled m ept. of Community & ting. +eai.W.AGHKD ED '.Se refrain from smoking, eating or drinking in the 4,uditorium The City of Diamond Bar uses recycCeX paper and encourages you to do the same. PLANNING COMP►'IISSION CITY OF DIAMOND BAR Tuesday, Pdarch 10, 1998 AGENDA CALL TO ORDER: 7:00 p.m. Next Resolution No. 98-5 PLEDGE OF ALLEGIANCE: 1. ROLL CALL: COMMISSIONERS: Chairman Joe Ruzicka, Vice Chairman Joe McManus, Steve Tye, George Kuo and 2. MATTERS FROM THE AUDIENCE/PUBLIC COMMENTS: This is the time and place for the general public to address the members of the Planning Commission on any item that is within their jurisdiction, allowing the public an opportunity to speak on non-public hearing and non - agenda items. Please complete a sneaker's Card for the recording Secretary (oMpletion of this form is voluntary). There is a five minute maximum time limit isI+en addresging the Planning CQ --mission 3. APPROVAL OF AGENDA: Chairman 4. CONSENT CALENDAR: The following items listed on the consent calendar are considered routine and are approved by a single motion. Consent calendar items may be removed from the agenda by request of the Commission only: 4.1 Minutes of February 24, 1998 5. OLD BUSINESS: . None 6. • NEW BUSINESS: 6.1 Presentation of Plaques to Outgoing Commissioners 6.2 Reorganization of the Planning Commission a. Selection of Chairman b. Selection of Vice Chairman 6.3 Planning Commissioner's Policies & Procedures Manual Review of revised manual. 7. CONTINUED PUBLIC HEARING: None 8. PUBLIC HEARING: None March 10, 1998 - PLANNING COMMISSION AGENDA 1 ►� 10. 11. 12. PLANNING COMA'IISSION COMMENTS: INFORMATIONAL ITEMS: SCHEDULE OF FUTURE EVENTS: SOLID WASTE TASK FORCE - Wednesday - 6:30 p.m. - AQMD - 21865 E. Copley Drive. (room CC -3 & 5) - March ll, 1998. OFF-SITE PARKING TASK FORCE - Wednesday - 6:30 p.m. - AQMD - 21865 E. Copley Drive. (room CC -2) - March 11, 1998 TRAFFIC & TRANSPORTATION - Thursday, March 12, 1998 - 7:00 P.M. - AQMD Board Hearing Room, 21865 E. Copley Drive. CITY COUNCIL - Tuesday, March 17, 1998 - 6:30 p.m. - AQMD Auditorium, 21865 E. Copley Drive - DEVELOPMENT CODE PUBLIC HEARINGS: Articles I, II, & VI PLANNING COMMISSION - Tuesday, March 24, 1998 - 7:00 P.M. - AQMD Auditorium, 21865 E. Copley Drive PARKS & RECREATION CONMU EO Co ley Drive., March 26, 1998 - 7:00 p.m. - AQMD Board Hearing Room, 2 P ADJOURNMENT: March 24, 1998 March 10, 1998 - PLANNING COMMISSION AGENDA K DRAFT MINUTES OF THE CITY OF DIAMOND BAR REGULAR MEETING OF THE PLANNING COMMISSION FEBRUARY 24, 1998 CALIF TO ORDER: Chairman Ruzicka called the meeting to order at 7:12 p.m. in the South Coast Air Quality Management Auditorium, 21865 East Copley Drive, Diamond Bar, California. PLEDGE OF ALLEGIANCE: The ]Pledge of Allegiance was led by Vice Chairman McManus. ROLL CALL: Present: Chairman Ruzicka Vice Chairman McManus, and Commissioners, Fong, and Goldenberg. Commissioner Tye arrived at 8:12 p.m. Also Present: Deputy City Manager James DeStefano , Senior Planner Catherine Johnson and Associate Planner Ann Lungu. MATTERS FROM THE AUDIENCE/PUBLIC COMMENTS: None CONSENT CALENDAR: 1• Minutes Of February 10,.1998. VC/McManus moved, C/Fong seconded, to approve F'ebruar 10 1998 as submitted. tionw the minutes of February ' The motion was carried 4-0. OLD BUSINESS - None NEW BUSINESS - None PUBLIC HEARING: 1• Conditional Use Permit No. 98-1 and Development Review No. 98- 1 (pursuant to Code Section 22.56 -Part 1 and 22.72.020.A) is a request to construct and operate an unmanned Bank of America Automated Teller Machine Kiosk in the Country Hills Towne Center within an area between the existing The Wherehouse music and video store and the Diamond Bar Boulevard entrance to the center. Project Address: Country Hills Towne Center, Diamond Bar Boulevard, Diamond Bar Applicant: Bank of America, 600 Wilshire Boulevard, Los Angeles, CA 90017 FEBRUARY 24, 1998 PAGE 2 PLANNING COMP Property Owner: M & H Realty Partners, 1721 W. Imperial Highway #G, LaHabra, CA 90361 5801 S. Eastern Avenue, Suite 100 Los Angeles, CA 90040 Staff recommends that the Planning Commission continue the project to March 24, 1998. C/Goldenberg moved, VC/McManus seconded, to' continue the matter to March 24, 1998. The motion was carried 4-0 with the following Roll Call vote: AYES: COMMISSIONERS: Fong, Goldenberg, VC/McManus, Chair/Ruzicka NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: Tye CONTINUED PUBLIC HEARING: 2. Vesting Tentative Tract Map No. 52267, Conditional Use Permit NO. 98-03, Oak Tree Permit No. 98-01 and Environmental Impact Report No. 97-2, VolumeI and II for VTTM No. 52267. VTTM No. 52267 is proposed for 130 single-family detached residential dwelling units clustered on approximately 65 acres of a 339.3 acre site. The development is proposed as a private, gated community. Lots will range in size from 6,000 square feet to 26,000 square feet with an average lot size of 10,900 square feet. The gross proposed density is 0.4 dwelling units per acre with a net density of approximately 2.06 dwelling units per acre. (Continued from the February 10, 1998 meeting.) Property Address: Generally located east of Diamond Bar Boulevard and north of Grand Avenue. Property Owner: Diamond Hills Ranch Partnership 5109 E. LaPalma Avenue, Anaheim, CA Applicant: Todd Kurtin, SunCal Companies 5109 E. LaPalma Avenue, Anaheim, CA Staff recommends that the Planning Commission open the public hearing, receive a presentation from the applicant, receive public comments, and continue the public hearing to March 10, 1998. Todd Kurtin asked that the proposed project be continued to March 24, 1998. He stated the applicant is currently working on an alternative plan to propose construction on Lot 6 only and does not feel that staff will have adequate time to review the proposed project prior to March 10, 1998. Chair/Ruzicka asked if a new public hearing notice will be advertised if the project is continued to March 24, 1998. FEBRUARY 24, 1998 PAGE 3 PLANNING CON;}WONT DCM/DeStefano responded that if the intent of the a request a continuance to March 24 e1ieW a t to alternative to the currently' 1998 is to review a new to renotice the project. proposed project, it is advisable C/Goldenberg asked for an Opportunity to address the audience following comments. At the last Planning Commission meeting, many inaccurate comments were made by the and need to be addressed in order to be fair to the City staff. y and Chair/Ruzicka opened the public hearing. DCM/DeStefano responded that at the behest of the commission, staff will answer questions that can be addressed with the information that is Sion, available. Don Guilette, 1027 Banner Ridge Road resident of the City and he and his wife saihe is a 20 year have the open space and the illusion of "country living" rapidly disappearing grown to like wonder why due to development. g" which is there is so p He said is there any Politicians and elected much contempt Officials eand distrust for the this proposal. He asked whyyou see projects like advised of the "He asked the effected homeowners were not lie found out about this matter rthrough f the canyon". He said Sunday afternoon. He indicated he resides approximately reel 1 on feet from the property and asked why he was tnotifie.1000 restricted know why there is a discussion regardingHe property. He stated the officials should have told the builder that there was no building allowed in the area He said this open space belongs to the and it is not the City's property to people of Diamond Bar his concerns regarding three give up. He spoke about trucks on already congested years Of and heavyHePlanning Commission recommend that the CityHe asked that the attempt to destroy the City's open space.Council deny this Steve Lasser, 23403 Stirrup Drive, said the City has not done a good job in handling this matter like a business decision because only 300 fl about a three year yers were sent out to massive gradin People advising them g project. He said he lives a block away from the project and he did not receive a flyer. He talked about the costs of the ct and the exposure due to the potential of se several class action lawsuits as a result of this construction,liability Proposition 13, the He said that because of sufficient revenue to support structures will not about the benefits: Pport the infrastructure. generate acres for a SunCal s offer to He spoke they will replace o30 of Of the 340 give the citizens six acres they want to develop; removed; the community the 600 plus oak trees that will be and installation of one ltrbe located behind a. guarded proposed in exchange of light.These benefits care quality of life, anall o of the trafficcongestion, the residents aMoved moved FEBRUARY 24, 1998 PAGE 4 PLANNING COMPWC; here to avoid. Diamond Bar is not the place for development because the property is protected. The people want the property left as it is and they do not want the politicians getting money from developers. Dr. Chrishna Goode, 624 Hoss Street, asked the Commission to comment on the Environmental Impact Report which she said she understands is grossly polluted. She said she believes that the dynamite blast's particle output will certainly lead to serious health problems in the area. She asked if the area schools are prepared to accommodate the additional 200 or 300 middle school children of families who purchase property in this development. She said she does not understand why the City is discussing deed restricted property. Ken Martinez, 772 S. Farben Drive, said he does not understand why this project is before the City. The citizens do not want this project and he asked the Planning Commission to make a decision tonight. George Davidson, 23426 E. Wagon Trail Road, asked for clarification of the notification process. He said he believes a decision should be made tonight regarding this project. Henry Pourzand, 1008 Quiet Creek Lane, again commented on information contained in the EIR. Clyde Hennessee, a Diamond Bar resident, said the Planning Commission is doing exactly what it is supposed to do. He invited the residents to attend City Council meetings and voice their opinions because the Council will have the final decision regarding this project. He commented that statements made by a citizen regarding Proposition 13 are not correct. Sam Saffari, 24075 Highcrest Drive, asked the Commission to make a decision tonight with respect to this project. He asked why SunCal paid 2.7 million for property that is worth hundreds of millions of dollars and put the project in the City's General Plan when no one was looking. He said he wants the Planning Commission to propose a "no building" initiative. He indicated staff did not explain how many people have left messages at City Hall about this project. Gene Mullinax, 23424 Mane Drive, spoke about the EIR. He stated his concerns regarding the runoff and resulting damage that will be created by the proposed project. A citizen residing at 23646 E. Gold Nugget Avenue, said she does not want deed restrictions lifted. More houses mean more schools. Diamond Bar should not be dealing with problems like those experienced by Chino Hills. Ron Tehrany, 745 View Lane, asked the Commission to request the applicant to provide a new_ EIR for the alternative FEBRUARY 24, 1998 PAGE 5 ING CO proposal. He requested the Commission initiative against building in open s to recommend mmend an Jeremy Bluto, 304 Navajo Sprin s project is continued to March 24 g Road, asked that if the to all Diamond Bar residents. 1998, that notice be mailed Steve Swanson, 23966 Gold reminds him of the Ra in Nugget Avenue, said this Why the Planning Raging Waters project. He wants project When the citizens are against ssion nitn999 to 1 nsider this know project Chair/Ruzicka closed the public hearing. Responding to Chair/Ruzicka's concerns, DCM/DeStefano stated r he followst to ing: to citizen's remarks require the g• Some of the Consultant who is response of the City's Environmental comments not Present this evening. With respect to Pertaining to the development he aphic showing 340 acres owned b presented a being proposed for y the developer with about 65acresroposes to build 130proposed development. The developer dwelling units from the extension of Highcr st Drive the existing Diamond Barll to a BoulevarrOposed intersection Opposite provide d• The developer has rTin the City with the balance Proposed to (approximately 275 acres of the 340 acres addition to the developer'sacre)Permanent public open space acres) that exists on holding (approximatel6o-70 a hill Pantera Drive. behind Pantera Park off of Commissioner Tye arrived at 8:12 p.m. DCM/DeStefano continued. The lot on which the Proposes to build dwelling units restricted. The is not ma developer development have properties on either side of the and deed proposal re P and deed restrictions. Proposed quests that the 130 homes be developed on a current Of the adjacent map and deed. to the Cit restricted Portion Y's General Plan, if a developer or property wner wants permission to remove or modifyma Pro ert must go through the t P restrictions, they the Planning type °f Process that is currently Council with the Planning and ultimately, before before some cases the Cltlanning Commission's recommendation. he City restrictions y Council has lifted the ma eIn d and in some cases it has not lifted the mapdeed deed restrictions. me cases in applicant must demonstrate that there is a sg to the ign ficant benefit and to the City in liftingpneral the out that the ma and deed restrictions. it Outt flattening project as Presently proposed He Pointed or filling of all of the� not require the applicant. The project is designed to beproperty developed only alone the ridgeline and the immediately adjacent Goldrush Drive side of the hPro pert P Y• POn the stand of trees and an ancient landslide.ere is On the southnside aof the project near Steep Canyon Road there is a second ancient FEBRUARY 24, 1998 PAGE 6 PLANNING COD016 N landslide. Both landslides need to be mitigated. He emphasized that Diamond Bar is fraught with landslides. Nearly every project in the City has had to deal with the removal of this type of geological formation in order to render the area safe. The developer is not proposing that the area adjacent to Steep Canyon Road be filled as speakers have indicated. According to the developer's proposal, the canyon will remain intact and the north side of the canyon would be reconfigured to mitigate the existing landslide to secure the area for safety purposes. The proposed grading incorporates about 1.8 million cubic yards of earth. That amount of earth will generate the type of pollutants a previous speaker identified. The City's employed Environmental Consultant points out in the EIR that this level of air pollution cannot be fully mitigated during the construction phase which is not uncommon during a construction project of this size. This fact does not determine whether the project will be approved or denied. In addition, the EIR points out the loss of a virgin hillside to 130 homes which is a factor that cannot be mitigated and it does not mean that this factor will result in approval of denial of the project. The Environmental Consultant has determined that factors such as impacts to schools, traffic, etc. can be mitigated to some degree which eliminates the project's impacts (ie: a traffic signal at Tin Drive). He explained that developers are required by law to pay to the school district $1.84 per square foot for school impact fees. DCM/DeStefano stated that with respect to public notice for the previous project, the Planning Commission directed staff to notice residents within 2000 feet of the proposed project radius. When the applicant withdrew the proposal, staff noticed everyone within 2000 feet of the projects. This project is smaller in size and magnitude. This project was noticed within 500 feet of the perimeters of the 340 acre site - approximately 1000 people. In addition, public notices were placed in The Daily Bulletin and The Tribune as required by the City's current Code. Notices are also posted on the City's electronic bulletin board, the City library, South Coast Air Quality Management, and on the display board at City Hall. With respect to the comments made that this project should not be considered at all and that the project should not be approved because the property is "open space", DCM/DeStefano explained that a property owner has a right to "ask" that his project be considered which.does not necessarily mean that a property owner has a right to "receive" approval. Room additions are handled by technical staff at City Hall. A project of this scale is reviewed by the Planning Commission which in turn makes its recommendation to the City Council. Decisions for approval or denial are made based upon the facts of the case, the merits of the application, understanding the environmental impacts, understanding the detrimental effects, understanding the positive effects with the Planning FEBRUARY 24, 1998 PAGE 7 PLANNING COON Commission making its recommendation to the Cit the City Council making factual and supportabley Council and compliance with State law and local Codes that the decisions in either appropriate or unappropriated for Diamond Bar T is project has a long way to go before it reaches the decision making process.- The Planning Position to take action tonight tomeithernp a is not in a legal den project. Facts have not been presented nthe order for it to support a recommendation to Coun '1 Regarding the s e k i ci . P a er s comment that staff did not reference any letters received from the public since the last Public hearing, DCM/DeStefano explained that copies of all letters are transmitted to each Planning Commissioner. The City has received no correspondence since the February 10, Planning Commission meeting. 1998 Responding to C/Fong, DCM/DeStefano confirmed that Planning Commission has the right to modify the project. the 'VC/McManus moved, 1998 C/Goldenberg seconded Public hearing to March 24 . to continue the . C/Goldenberg stated he has heard a number :statements during the public hearings. of misleading He one of the benefits of this project is the openin t u °f that ti 100 acres to the public. He said he is concerned that the developer might propose to reduce the size of the lots in order to build more homes on Lot 6. He referred to a February 24, 1998 speaker who said he would like to have the City remain as it was when he moved here three that frankly, he would have years ago. Preferred He said was when he moved here 22ed the City to remain as it years ao anresidents, no traffic lights and no traffire c th Manywere 7,000 residents protested the Pantera tract development which was built prior to cityhood under Los Angeles Count 's he thought a citizen's su y Jurisdiction. He said a good idea. ggestiOn to buy back the property was He said i is concerned about the lack of courtesy toward the applicant and staff. While this is an Commission is emotional issue, the Planning Commi hearing all of the facts related to the proposed charged with stated the Planning Commission listens to the project c ti e s and asks that the citizens extend the same courtesy to the Commissioners who are residents of this community. He pointed out that the Commission did t community outpouring when two and o one-half half thetypsame e type of dirt were moved during the construction of Diamond RanchdHigof h School. C/Fong asked what the developer plans to propose as an alternative. DCM/DeStefano reiterated Mr. Kurtin's that he intends to propose an alternative torplace stheatement development entirely within Lot 6 which will not require map and d eed FEBRUARY 24, 1998 PAGE 8 PLANNING COMP W9 restriction removal. The details of the proposal have not yet been provided to the City's Planning staff. C/Goldenberg called for the question. The motion was carried 5-0 with the following Roll Call vote: AYES: COMMISSIONERS: Fong, Goldenberg, Tye, VC/McManus, Chair/Ruzicka NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: None PLANNING COMMISSION ITEMS: None INFORMATIONAL ITEMS: None SCHEDULE OF FUTURE EVENTS as listed in the agenda. ADJOURNMENT: VC/McManus moved, C/Goldenberg seconded, to adjourn the meeting to March 10, 1998. There being no further business to come before the. Planning Commission, Chair/Ruzicka adjourned the meeting at 8:42 p.m. Respectfully Submitted, James DeStefano Deputy City Manager Attest: Joe Ruzicka Chairman TO: FROM: SUBJECT: DATE: INTEROFFICE MEMORANDUM Chairman and Planning Commissioner ,, James DeStefano, Deputy City Man' Reorganization of the March 3, 1998 Planning Commission According to City Ordinance No. 25Dand the Planning Commission Policies and Procedures Manual, the)Planning Commission shall,, at its first regular meeting in March of each calendar year, elect a Chairman from among its appointed members for a term of one year, and may create and fill such other offices as it may determine. For the Planning Commissi Chairman. on, such office is the Vice At the March 10, 1998 Planning Commission meeting, the Chairman will relinquish the gavel to the Commissions secretary. Nominations for and the election of the Chairman will then take place. The gavel will be awarded to the newly elected Chairman and nominations for and the election of the Vice Chairman will take place. RECOMMENDATION: It is recommended that the Planning Commission consider and elect a Chairman and Vice Chairman from its membership. Attachments: 1• City Council Ordinance No. 25D (1989); and 2. Page 8, Off_ i ers from the Planning Commission Policies and Procedures Manual dated March lo, 1998. ORDINANCE NO. 25D (1989) AN ORDINANCE OF TEE CITY CO UNCIL OF DIAMOND BAR AMENDING ORDINANCE NOF THE CITY AS HERETOFORE AMENDED CONCERNING THE SEL(1989) ECTION 25 OF A CHAIR AND OTHER OFFICES OF THE PLANNING COMMISSION The City Council of the City of Diamond Bar does as follows: ordain section 1. Section 5(g) Of Ordinance No. 25 (1989), as heretofore amended Of the City Council of the City of Diamond Bar hereby is amended to read in words and figures, as follows: "(g) The Planning Commission shall, at its firs regular meeting in Mt March of each calendar year, elect a chairman from among its appointed members for a term of one (1) year and may create and fill such other offices as it may determine and shall hold regular meetings at least once a month and other meetings at such additional times as are deemed necessary.,, section 2. The Cit Clerk shall certify to the adoption of this Ordinance and s hall cause the same to be posted in three (3) public Places within the'city of Diamond Bar Pursuant to the provisions of Resolution 89_6. ADOPTED, AND APPROVED this — 21—St _ y of day — April 11. When testimony has ended, each Commissioner should be invited to contribute his/her views on the proposal. 12. View the public hearing as an example of basic democracy in action at the local level. Make it your personal goal to have a successful public hearing. Individuals should feel treated fairly and believe the Commission had all the facts, was open in its deliberations and acted accordingly. An individual should not dominate the meeting and there should be sufficient time for all to speak. Individuals should not leave the meeting feeling disenfranchised. (21 i r The Planning Commission should, at its first regular meeting in March of each calendar year, elect a chairperson and vice chairperson from among its members for a term of one year. The Commission may create and fill such other offices as may be deemed necessary. The chairperson shall be the presiding officer at all meetings. In the absence of the chairperson, the vice chairperson shall preside. In the absence of the vice chairperson, the Commission shall elect a temporary presiding officer to serve until the arrival of the chairperson or vice chairperson or adjournment. If the chairperson's and vice chairperson's positions are vacated, the Commission shall elect officers for the balance of the term. The chairperson shall sign resolutions and documents approved by the Commission at meetings where he/she is in attendance. In the chairperson's absence, the vice chairperson shall sign all such documents as adopted and approved. In the absence of the chairperson and the vice chairperson, the temporary presiding officer shall sign all such documents as approved and adopted during the meeting at which he/she presided. The chairperson or presiding officer is responsible for the maintenance of order and decorum at all times. No person should be allowed to speak who has not first been recognized by the chairperson. All questions and remarks should be addressed to the chairperson. Meetings shall be conducted according to gober!s B111es of order. If necessary a Sergeant at Arms may be appointed by the Planning Commission Secretary.. The chairperson may appoint special subcommittees of less than a quorum of the Commission. The subcommittee may meet to carry out their assigned tasks, to discuss future projects, future ordinances, and future agendas. MARCH, 1998 8 F4. I, LYNDA BURGESS, City Clerk of the City of Diamond Bar, do hereby certify that the foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Diamond Bar held on the 7th day of Aori 1992, and was finally passed at a regular meeting of the City Council of the City of Diamond Bar held on the 21st day of April 1992, by the following vote: AYES: COUNCILMEMBERS: Miller, Werner, Forbing Mayor Pro Tem Papen, Mayor Kim NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None ABSTAINED: COUNCILMEMBERS: None ATTEST: 4CitAlderkLlof the City of Diamond Bar INTEROFFICE MEMORANDUM TO: Chairman and Planning Commissioners ]]]��� FROM: Ann J. Lungu, Associate Planner SUBJECT: Planning Commission Policies and Procedures Manual DATE: March 41 1998 On June 10, 1996, the Planning Commission adopted a Planning Commission Policies and Procedures Manual. Attached is a revised Planning Commission Policies and Procedures Manual dated March 10, 1998. A majority of the revisions relate to the recent reorganization of City staff (pages 1, 2, 4 and -4A). Other revisions relate to the Planning Commission's meeting day change from Monday to Tuesday (page 10) and clerical changes for typographical errors. The Brown Act was amended this year. Appendix A of the Planning Commission Policies and Procedures Manual includes the amendments (page 2A). The 1998 amendments are delineated by underlining. The Political Reform Act of 1974 (California's Conflict of Interest Law) is within Appendix B of the Planning Commission Policies and Procedures Manual. Amendments to Appendix B will be forwarded to you. Although not all-inclusive, the revised manual contains information that will be helpful to you during your tenure. Please review the revised Manual which will be considered for adoption at the April 14, 1998 Planning Commission meeting by resolution. If you have any questions regarding the information presented in the Manual, please contact the staff. Attachments: 1. Planning Commission Policies and Procedures Manual date March ]_0, 1998. PLANNING COMMISSION DRAFT POLICIES Fj �, ito CIA I A I Cl MANUAL Revised Draft March 10, 1998 TABLE OF CONTENTS Introduction ......... Department of Community and Development Services ............ 1 Planning Division 1 Building and Safety Division 2 Public Works Division " " " " " " " 2 Community Services Division 2 General Information .. History of Diamond Bar _ 3 Diamond Bar Form of Government • 3 City Advisory Bodies .,..,, •• " " " " " " " City Staff ..................' ........:............. 4 City of Diamond Bar Organization Chart ....... •... 4 Planning Commission Membership and Operations .............. 5 Purpose .. ... 5 Responsibilities 5 Membership ............................................ Effectiveness ...•- " " " " " " '•••• 5 5 Officers 6 Quorum .................................... 9 Agendas For Meetings ... 9 Meetings.............................................. 10 Motions Limitations on Collecting �Evidence �Outside 11 the Hearing 13 Adjourned Meetings Special Meetings •'• " " " " " " •••• 13 Study Sessions........................................13 14 Minutes ....................• Planning Commission14 •Recommendations 14 Relations With City Council, Other Commissions, Committees, and Staff ...... Relations With Public ......••. 15 14 Compensation/Travel Expenses16 Conflict Of Interest •..' ........ 17 Disqualification From Commission Decisions,,,,,,,,,,,,,, 20 MARCH 10, 1998 BrownAct ............................................. 20 California Environmental Quality Act Required Procedures .............................. 20 Importance of Findings in Quasi -Judicial Action ........ 27 Topanga: The Cornerstone for Findings 27 Definitions...................................... 27 Purpose .......................................... 28 Circumstances Requiring Findings ....... ....... 28 Preparation of Findings: A Question of Timing 29 Summary: Bridging the Gap .......................31 • Specific Action ...................................... 31 Conditional Use Permit .......................... 31 Variance...................................... .. 32 Tentative Tract Map or Parcel Map 32 Zone Change ...................................... 33 Summary ............................................... 34 Appendix A: The Brown Act lA Brown Act, 1998 pmendments..................2B Appendix B: A Guide to The Policitcal Reform Act of 1974 California's Conflict of interest Law for Public Officials ..........................1B MARCH 10, 1998 INTRODUCTION The. City of Diamond Bar encourages and promotes participation by citizens in the decision making process through a variety of activities. Most notable is the appointment of citizens to a number of standing commissions to advise the City Council on specific issues and problems. In certain situations, the commissions are empowered to make decisions, subject to appeal to the City Council. This manual's primary objective is to provide a guide for Planning Commissioners in the conduct of meetings in accordance with City laws and policies; to inform members of the responsibilities and duties of the Planning Commission; to clarify relationships between Commissioners and the City Council, City Manager, City staff, and general public; and to provide general information that might be useful in the conduct of public meetings. The City of Diamond Bar is fortunate to have concerned citizens give their time by serving on the Planning Commission. The level of citizen involvement in local government is growing, and with it the challenge and opportunities that will require the careful attention of the Planning Commission, City staff, and City Council working together towards common goals. It is hoped that this manual will assist you as a member of the team. The City Council and staff are most appreciative of your time and efforts. Four divisions constitute the Department of Community and Development Services - Planning Division, Building and Safety Division, Public Works Division and the Community Services Division. The planning Division provides the community with long and short term, planning in order to coordinate and monitor growth and development. It is charged with the development and implementation of the General Plan. It prepares and administers projects for compliance with various development ordinances. The Planning Division insures that all projects receive the required environmental review in compliance with the California Environmental Quality Act (CEQA). The Planning Division is responsible for functions related to current and advanced planning, and code enforcement. The Planning Division is also responsible for the advancement and administration of economic development and Community Development Block Grant (CDBG) programs. It updates and maintains records for the general public and coordinates projects and programs with other governmental agencies. MARCH 10, 1999 The Building and safety Division is responsible for the protection of public health and safety through the enforcement of the building and related codes. This division provides for building and safety plan check, permit issuance and inspection services. The Public Works Division provides information on general engineering matters related to City streets, public right-of-ways, City's capital projects, utilities, traffic related issues, etc. to the general public, contractors, developers, utility companies, and other public agencies. It coordinates City projects and plans with other governmental agencies (i.e. SCAG, LACTC, CalTrans, County of Los Angeles) to ensure that the City's concerns are addressed. This Division manages and enforces the City's requirements for subdivisions, lot development, utilities, vehicle/pedestrian traffic, and the use of public right-of-way. All plans and projects for proposed development are reviewed and any required reports are prepared for the Planning Commission, Traffic and Transportation Commission, and the City Council. other responsiblities of the Public Works Division include, the City's traffic and transportation activities, grant administration, and the administration of related Capital Projects d Funds and the ay -to -day maintenance of publicly owned properties, i.e. streets, curbs, gutters, sidewalks, traffic signals, signs, streets lights, sewers and storm drains. The Community services Division is responsible for the maintenance and operation of the City's ten parks and in conjunction with the Public Works division, is responsible for capital improvement projects within the parks. The City's three Lighting, Landscape & Maintenance Districts are under the Community Services Division's purview. This Division administers the City's community recreation program, a portion of which is provided through contracted services with the City of Brea. In addition to the contracted services, the Division's staff currently conducts the Tiny Tots program, senior programs, adulte excursions and Adopt -A -Park program. MARCH 10, 1999 2 GENERAL INFORMATION As with many southern California communities, Diamond Bar's recorded history began with a 4,340 acre Spanish land grant deeded by Governor Alvarado to Jose de la Luz. divided into parcels which changed hands man The land was mes prior to 1900. In 1918, Frederick E. Lewis bought most ofl the original Rancho Los Nogales area to establish a cattle ranch and registered the brand of Diamond Bar with the Department of Agriculture. In 1956, Transamerica Corporation paid e $10,000,000 to purchase 8,000 acres of the Diamond Bar ranch from the Bartholomepurchas Transamerica Corporation formed a master -planned community that would eventually become home for some 74,000 people. The first model homes were built at the town's north end in 1960 and began a development "boom". Diamond Bar is a typical suburban bedroom community with limited commercial and industrial land. Commercial acres a is developed with uses designed to serve residents. g Primarily Bar is a young, upscale residential community withdy s Diamond a Po of about 56,000 situated among meandering hills and a 1 eyslof Brea Canyon. It is located at the junction of the Pomona (60) and Orange (57) freeways and spans approximate 15 square miles. Diam.o.nd Bar's Form of - Government The City of Diamond Bar was incorporated April 181, 1989 as a general. law city with a government. City Council/City Manager form of The City Council is composed of five members elected by residents for over -lapping four year terms. It is the governing body of the City, vested with regulatory and corporate Council establishes policy and is ultimately responsible TheCit Cthe people for its actions. Diamond Bar's organizational structure consists of a mayor and a mayor pro -tem selected by the City Council. The Mayor is the presiding officer of the City Council for a one year period, with the Mayor Pro -tem as the position's backup. Due to the complexity, diversity, and quantity of issues facing the City Council, Commissions are asked for input in the decision making process. MARCH 10, 1999 3 There are two types' of advisory bodies. One is established by City ordinance of a permanent nature. The duties, responsibilities and scope of authority are set forth in the enabling ordinance. The other type of advisory body is created by a resolution of the City Council to serve a particular function for the City. The main purpose of both is to collect information, weigh public opinion, and examine issues thoroughly in order to make a recommendation to the City Council. City Manager is responsible for the administration of the City's government. This staff member is appointed by the City Council, serves as the City's treasurer, and appoints department heads and employees to provide services to the community. Deputy City Manager/Administrative Services Department inances the and following functions: City Clerk, Public Safety, Personnel. Deputy City Manager/Community and Development Services Department manages the Planning Division, Public Works Division, Engineering Division, Building and Safety Division and the Community Services Division. The City contracts for Police, Fire, and other services. Department directors are responsible to the City Manager. The City Manager guides the work of the departments with direction from the City Council. 4 MARCH 10, 1998 7 * o � EE o v _a v y v . U C V U C 'o a,vbe � QJ LL o0 v H 00 . Lz: CL Ln •C E v QLuCL N O U0 N L y = 0 m L Y = Uv o 0 0� ._ C C N C o� m oC o Qui O '� `d C '^u U co 00 O _o o wJ v �So:WSoc o c y> O E E o m CL CL CL0 u M WN U v (C� G u c r c u o v C. C y0 L _ A U CU v E 'R W O y _� V h E C E eq V QO � c a 3 41 ro A L. N u UHH (U c c N 0 E N '0 YL.U a. Q Q% UN N C .�iDaovd�n E* � U � D • _ 00 a v o u U' .E = W C o 7 O o QUULw * C V toO Q1 ji U cn k A m — 7 PLANNING CONMISSION KENBERSHIP AND OPERATIONS The purpose of the Planning Commission, generally, is to set broad policy in preparation of the General Plan which is a comprehensive, long-term plan for physical development of the City of Diamond Bar and areas within its sphere of influence. The Commission also adopts, implements, and periodically reviews the General Plan. The Commission concerns itself with long-range planning and development including, but not limited to, the preparation and maintenance of specific and area plans, and the review of environmental impact reports and capital improvement programs. The Commission also concerns itself with short-range planning and programming including, but not limited to, the administration of zoning. It is the Planning Commission's primary responsibility to develop and implement the General Plan (pursuant to Planning and Zoning Law Government Code 565103) The Commission takes action on development applications, gives final approval for variances, specified development permits, and conditional use permits. Additionally, the Commission acts as an advisory board to the City Council for vesting and tentative parcel maps, reversion of acreage, vesting and tentative tract maps, entitlements on specific plans, generalplan amendments, development code amendments, development agreements, surface mining, and land reclamation plans. (Organization, Terms of Office, Filling of Vacancies) The Planning Commission consists of five members that are residents of the City of Diamond Bar. Selection to the Planning Commission is based on the following: a broad perspective and concern for the welfare and progress of the City; a familiarity with the City's history, issues, and goals; an interest in the Planning Commission's function and area of responsibility; a readiness to devote time and effort to carrying out a Commissioner's duties and responsibilities; and willingness to be aware of and understand the City Council's policies. Each Commissioner is appointed by one member of the City Council and confirmed by a City Council majority vote. However, should a Council member fail to make an appointment within 30 days of the vacancy in question, a Council majority vote shall appoint to fill the vacancy. BCH 10,1999 5 If a vacancy occurs other than by expiration of a term, it shall be filled within 30 days, by appointment, for the term's unexpired portion by the council member who appointed or had the opportunity to appoint the Commissioner whose position has been vacated. If the vacancy is effected by removal, the person so removed may not be appointed to fill the vacancy. (Length and expiration of terms are set by City Council Ordinance No. 25C (1969). Copies of this ordinance may be obtained through the City Clerk's office.) Each of the Planning Commissioners shall be deemed to have resigned from his/her position on the Commission 90 calendar days after the succession of any council member, whether by election, reelection or appointment, who appointed, or had the opportunity to appoint, such Commissioner, and that commission position shall thereupon be deemed vacant and available for appointment for the otherwise unexpired term, if any. If a Planning Commissioner is absent from three consecutive regular meetings or from more than 50 percent of the regular meetings in any one year period, the commission office shall be deemed vacant. As a result, the Commission's secretary shall immediately inform the City Council of such vacancy. A Planning Commissioner's term of office shall be two years commencing on March 1 of even -numbered years and expiring on the last: day of February of even -numbered years. Any Planning Commissioner may be removed without cause during his/her term of office by a four-fifths City Council vote. However, no such member may be removed during the initial three months of any term Of office for which he/she is appointed. Organized groups exist .to get things done, to complete certain tasks, and to achieve certain agreed upon purposes or goals. A commission is a set of individuals held together by a web of interrelationships and feelings. Members have feelings about themselves, about the group, and the group's tasks and goals. The nature and intensity of these feelings set the "climate" of a commission. A positive climate encourages member involvement and responsibility to take action. Optimum participation is achieved when the commission's stated tasks are understood. Members should keep the tasks visible and clearly defined. Effective commissions set clear objectives, prioritize tasks, anticipate and analyze problems, develop actions/options, identify roadblocks, make decisions, actively listens supporting colleagues, and utilize diagnostic skills. Public hearings or citizen input meetings may be difficult to manage. Participants at public hearings are usually highly MARCH 10, 1"e 6 motivated and often emotional. When there is a group of potential adversaries in one room, the possibility of uncontrolled conflict is very high. As commissioners your role is to gUide conflict to positive results, W& to eliminate it. The following suggestions should help manage conflict and confrontation effectively. 1. Study your agenda and do your homework prior to the meeting so you can concentrate on the dynamics of the meeting. 2. Treat all sides fairly. Set the rules of the hearing early and make sure everyone follows them without exception. 3. Explain carefully the purpose of the public hearing and what action is expected at the conclusion of the hearing. Insistence on playing by the rules is your best tool for conflict management in the public hearing. 4. All persons speaking must clearly identify themselves, not only for the record, but so the Commission can address them by name. 5. Set an acceptable time limit for testimony and stick to it. 6. Make decisions as promptly as possible. Avoid becoming bogged down in procedural distractions, petty details, and endless searches for more information, so that the issue never seems to get resolved. 7. Try to turn frustration into constructive avenues. Ask questions. Be specific. Reinforce areas where you agree. Do not return insults. Your insults can turn the audience against you for your lack of control and unfairness. 8. Try to avoid speaker -to -audience conversation. A hearing's purpose is to help the Commission act, not engage in debate. 9. If other commissioners have questions of the speaker, permit these questions only during the speaker's time at the podium. 10. Be careful not to prejudge the action of the Commission. Use the hearing to gather necessary information about the project and individual desires concerning the proposal. Commissioners should not express their views on the proposal until after testimony has ended. Comments and questions should not suggest a bias position. MARCH 10, 1998 7 11. When testimony has ended, each Commissioner should be invited to contribute his/her views on the proposal. 12. View the public hearing as an example of basic democracy in action at the local level. Make it your personal goal to have a successful public hearing. Individuals should feel treated fairly and believe the Commission had all the facts, was open in its deliberations and acted accordingly. An individual should not dominate the meeting and there should be sufficient time for all to speak. Individuals should not leave the meeting feeling disenfranchised. The Planning Commission should, at its first regular meeting in March of each calendar year, elect a chairperson and Vice Chairperson from among its members for a term of one year. The Commission may create and fill such other offices as may be deemed necessary. The Chairperson shall be the presiding officer at all meetings. In the absence of the chairperson, the vice chairperson shall preside. In the absence of the vice chairperson, the Commission shall elect a temporary presiding officer to serve until the arrival of the chairperson or vice chairperson or adjournment. If the chairperson's and vice chairperson's positions are vacated, the Commission shall elect officers for the balance of the term. The Chairperson shall sign resolutions and documents approved by the Commission at meetings where he/she is in attendance. In the chairperson's absence, the vice chairperson shall sign all such documents as adopted and approved. In the absence of the chairperson and the vice chairperson, the temporary presiding officer shall sign all such documents as approved and adopted during the meeting at which he/she presided. The Chairperson or presiding officer is responsible for the maintenance of order and decorum at all times. No person should be allowed to speak who has not first been recognized by the chairperson. All questions and remarks should be addressed to the chairperson. Meetings shall be conducted according to Roberta R" of O.d=. If necessary a Sergeant at Arms may be appointed by the Planning Commission Secretary. The Chairperson may appoint special subcommittees of less than a quorum of the Commission. The subcommittee may meet to carry out their assigned tasks, to discuss future projects, future ordinances, and future agendas. MARCH 10, 1998 8 OuOr m A quorum consists of a majority of the members of the Planning Commission and is sufficient to conduct business. A quorum is required to conduct business at any meeting whether it is a regular or special meeting. While a commissioner is expected to be present at all meetings, if he/she knows in advance that his/her attendance is not possible, the commissioner should notify the Commission Secretary. The Brown Act requires that a regular meeting date and time be established each month. If there are no items of business on the agenda, it is not necessary to convene. There are two ways to handle this situation. One, the Commission Secretary posts a notice at the meeting place indicating that "for lack of a quorum, the meeting will not be held." The other is to have the Secretary actually show up at the regular meeting place and time and finding no•quorum, adjourn. In the second case, there is the advantage of documentation. Minutes of the meeting would be prepared showing a lack of quorum. If a notice is used, a copy of the notice must be kept in the minutes file for the record. Meetings need not be held unless sufficient business will be discussed. The following steps should be taken to ensure that a public meeting is properly cancelled: 1. State the intention to cancel the meeting a minimum of 72 hours prior to cancelled or rescheduled date; 2. Send out written notices to all affected parties, at minimum, to all those that receive your agenda packets; 3. Assign one person to attend the cancelled meeting to inform anyone that arrives that the meeting will not take place. This person must stay a minimum of 15 minutes.. The Planning Commission Secretary is responsible for preparation and distribution of the agenda and supporting documents prior to each meeting. The agenda should indicate the schedule and subject of the public hearing. However, with the unanimous consent of the the Brown Act, agendasagenda mmustybeetaken posted attof leastr72rhoursrsuant to prior to the regular meetings. A commissioner may request to place one item on the agenda per meeting. The Planning Commission secretary's advice shall be obtained pertaining to the staff's work load, cost that may be incumbered by the City, and urgency of the item. No action or commitment may be taken on items which are not on the 9 MARCH 10, 1999 Posted agenda. No discussion may occur regarding an item which is not posted on the agenda. Items brought u b may be presented. However, there will be no discussion held for action taken. The Commission may refer the item to staff. Ever agenda must provide an opportunity for the public to address the Commission. y All Planning Commission meetings must be open to the public in accordance with the Brown Act, the local law. Every regular meeting's agenda must provide open meeting for members of the provide an opportunity items of Public to directly address the Commission on public interest that are within the Commission's jurisdiction. Additionally, Provided an opportunity to ddress the Commission ners Of the u on any agenda must be item prior to or concurrently with, the Commission's consideration Of the item. The Commission may establish its own relative to public participation, provided that the procedures not conflict with the Brown Act. procedure does The Planning Commission meets on the second and fourth Tuesday of each month at 7:00 p.m. in the south Coast Air District Auditorium located at 21865 Copley Quality Management The me time and place may be changed (to accommodate specific needs)eting 24-hour notice duly given to the public and media. An official notice of a public hearing shallbe local paper of general circulation. Published in a Commission should be fair and impartial. If an ngs held by the member or has a personal interest in the outcome of the he rin biased membermust disqualify himself/'herself and not participate. that Persons and/or groups who may be affected by the subject of the hearing should be given sufficient notice of the hearing's time and place and a reasonable opportunity to be heard. represented by counsel if desired and may be They may be oral and documentary evidence. They should also be ed to present ask questions of any speaker to ensure a full and trueermitted discl surto e of the facts. At the appropriate time, the Chairperson should open the hearing and explain to the audience hearing procedures. The general manner of conducting hearings is within the Chairperson's control and discretion. If there are numerous persons who would like to participate, and all represent the same view and opinions, the Chairperson may ask that a spokesperson be selected to speak for the group. If this arrangement cannot be made, the Chairperson may restrict each speaker to a Irrelevant and time limit so all may be heard. time comments should be ruled out of order by the Chairperson. After the hearing is opened, the usual procedure is for staff to MARCH 10, 1996 10 present the staff report, followed by Commissioners' questions given the Ts relating to the report. Proponents should then followed an opportunity to present their case firtheircaselProponentsycan opportunity for opponents to p points presented by then present their rebuttal questions stionss through the Chairperson. opponents. Either sidemay have had an opportunity to speak, the After all interested p ending audience participation. No hearing should be closed, g hearing that has been closed may be reopened without unless additional notice in the same manner as the original hearing, hearing is reopened at taken upthe anotherme matter. ng it as Commissioners before closed and may the Commission h then discuss the proposal and take action on the proposal. KQt; ons When a Commissioner wishes to propose an idea for consideration, the Commissioner must make a motion. This is the only way an idea osal from a Commissioner can be presented to the body for or Prop motion is subject to the discussion and possible action. A following steps: 1. The Commissioner asks to be recognized by the Chairperson; 2. After being recognized, the Commissioner makes the motion with "I move ......"; 3. Another Commissioner seconds the motion. If the motion is not seconded, it fails; 4. The Chairperson states the motion and asks for discussion; 5. When the Chairperson feels there has been sufficient thediscussion, the debate is closed the e' any you further for the question. or discussion?"; 6. If no one asks for permission to speak, the Chairperson puts the question to vote; 7. After the vote, the Chairperson announces the decision with "The motion is carried" or "The motion fails" as is appropriate; be Phrasing a motion is often difficult and corrections son states necessary before it is acted upon. Until the Chairperson or the motion, the Commissioner making the motion may lrep After withdraw it. The consent of the second not the consent of the the motion has been stated by the Chairperson,If all of the body is required to change or withdraw it. 11 MARCH 1o,1998 Commissioners consent, an amendment must be formally acted upon by a motion. The motion, as amended, still must be voted upon. It is particularly important when a motion is amended that the Chairperson restate the motion so members are clear on what they are voting. In making motions, Commissioners should try to avoid including more than one proposal in the same motion. This is especially important when Commissioners are likely to disagree. If a Commissioner would prefer that proposals are divided and voted upon separately, the Commissioner should ask the Chairperson to divide the motion. If other Commissioners do not object, the Chairperson may treat each proposal as a distinct motion to be acted upon separately. The request to divide may also be made by motion. Any Commissioner may amend the main motion or any amendment made to the main motion. The first step is to propose the motion to amend. Undesired words to a pending motion may be deleted or desired words may be inserted. The Chairperson, not the individual Commissioner who moves an amendment, should make clear how the motion will be read if the amendment is adopted. The Chairperson should not omit stating which words will be deleted and/or inserted. An amended motion must be seconded and requires a majority vote for passage. It is better to amend a motion when it is pending than to wait until it is adopted and then attempt to amend. An amendment must be related to the main motion or amendment to which it is directed. Any amendment which substitutes a new motion rather than amending the existing motion is out of order and may be so declared by the Chairperson. Motions may be passed 2-1 if only three commissioners are in attendance. A split vote (negative, affirmative, or neutral) shall equal denial of the action as submitted. When the Commission is acting in an adjudicative capacity, and if a Commissioner is to vote on a matter which is the subject of a public hearing, the Commissioner should be present during the public hearing. However, if the public hearing has been closed and continued for a decision to another date, or the hearing is continued to another date, an absent Commissioner can vote if the Commissioner states the following on the record: I have listened to the full tape of the prior hearing(s) and read all documents considered at the prior hearing(s) on this matter. Any Planning Commission action may be reconsidered if a motion for reconsideration is introduced by a Commissioner who was among the majority of the action for which reconsideration is sought. Such a motion may be seconded by any Commissioner who voted on the action or who would be eligible to vote on it if the motion for reconsideration carries. For any action requiring a resolution passage, a motion for reconsideration may not be introduced after the meeting's closing MARCH 10, 1"8 12 at which such resolution was adopted. Motions for reconsideration of actions which do not require a resolution passage may be introduced at any subsequent meeting. Where a motion may not be reconsidered, it is often possible to make a new motion which revises or reverses the earlier decision. Any questions on this point, or any other matter of parliamentary procedure should be referred to the City Attorney or the City Clerk. The fair hearing concept includes the requirement that all evidence that serves as the basis of an adjudicative decision must be in the record so that it is subject to rebuttal. This can be a problem if Commissioners collect evidence outside of the public hearing. For example, the Commissioners may find it desirable to visit the site that is the subject of an application before the Commission. So long as the Commissioner indicates on the record that he/she has done so and describes what was seen, a site visit will not affect the validity of the hearing. The Commissioner should avoid speaking to applicants or other members of the public about a matter that is the subject of an adjudicative decision. In the event that they do have a conversation with a member of the public on such a matter, the Commissioner should state on the record who they spoke with, and the subject of the conversation. In this way the evidence obtained by the individual Commissioner, outside of the hearing, will become part of the record, and will be subject to rebuttal during the hearing. The Planning Commission may adjourn any meeting to a time and place specified in the order of adjournment. An adjourned regular meeting is considered a regular meeting for the purpose of transacting business. If for any reason, the business to be considered at a regular meeting cannot be completed, the Commission may designate a time and date for an adjourned meeting. The adjournment must be announced to the public present at the time and recorded in the minutes. Any meeting may be adjourned to a time, place, and date certain, but not beyond the next regular meeting. Once adjourned, the meeting may not be reconvened. Special meetings shall be opened to the public. They may be called by the Chairperson or majority of Commissioners or the Secretary. Written notice shall be given to the City Council and media at least 24 hours prior to the special meeting. The written notice shall indicate the business to be considered and the time MARCH 10,1998 13 and place of the special meeting. Only matters specified in the notice may be considered pursuant to California Government Code Section 54956. Study sessions or "work sessions" are usually informal, though public. They are usually scheduled as adjourned regular meetings and have a separate agenda. Minutes are taken at all Planning Commission meetings, transcribed and included in the following agenda packet. Once approved, the minutes are forwarded to the City Council for their information. Minutes are then kept as the official record for the Planning Commission's actions and are open for public review. Minutes shall consist of a clear and concise statement of each and every action including the motions made and the vote thereon. Reasons for making a motion or voting, debate, and audience reaction are generally irrelevant for purposes of the minutes. Such items may be included if considered to be particularly relevant or otherwise necessary by the Planning Commission Secretary. The Planning Commission Secretary shall have exclusive responsibility for preparation of the minutes. Any directions for changes in the minutes shall be made only by the Commission's action. Additions and corrections of the minutes may be made only in public meetings, with the Commission's approval and not by the private request of individual members. Planning Commission actions can be either advisory or conclusive unless appealed to the City Council. Advisory actions are transmitted to the City Council by the Planning Commission Secretary for final action/decision. :- •r r r � r- •uu •r •iiu -- r• In areas where there is an overlap of jurisdiction between Commissions, it is important that a liaison be developed to insure consideration of the different viewpoints and minimize duplication of efforts. Joint meetings with the City Council and .other commissions and committees may be mutually beneficial whenever two or more bodies are simultaneously addressing the same topic. Planning Commission members may address the City Council on any matter as individuals or as a Commission with majority approval of MARCH 10, 1998 14 the Planning Commission members. Additionally, the Chairperson may address the City Council as a representative of the Planning Commission with majority approval of the Commission. The Commission should not attempt to relieve the City Council of the responsibility for making political decisions. This responsibility properly rests with the City Council and cannot be delegated to any other body, however capable and interested it might be. The Commission or a member may disagree with the City Council on any issue. Once the City Council has established a position on an issue, the Commission must accept the position, policy, and program adopted by the City Council. If personal ethical problems arise, resignation from the Commission is appropriate. The Planning Commission should not attempt to predict City Council action, either publicly or privately. They may and should interpret City Council policies or identify trends in Council thinking. The City's administrative staff works for and is responsible to the City Manager. The City Manager may assign staff to act in a technical advisory capacity and provide supportive assistance to the Commission. Except where administrative authority is specifically conferred upon the Commission, the Commission should not attempt to direct or decide on the priority of work for the department providing staff to it. It should not ask that staff hours be committed for work that has not been budgeted or has not been approved by the City Council. Since staff is directly responsible to the City Manager, it becomes his/her responsibility to allocate their time and efforts. However, the Commission should set priorities for their own agendas. It is not expected that every staff recommendation will be approved. Based on the technical knowledge of staff, consideration should be given to their recommendations. After a staff recommendation is made, the Commission may or may not agree. In the latter case, staff has the option of making their recommendations to the City Council through the City Manager which may be different from those of the Commission. The Planning Commission or its members should not discuss individual concerns regarding personnel related matters with employees. These matters should be referred to their respective supervisors, department head, or the City Manager. Planning Commissioners are encouraged to become aware of public opinion relating to their field of influence and welcome citizen input at Commission meetings. The Commission is encouraged to take inventory of opportunities and resources to increase citizen involvement. MARCH lo, 1999 15 Commission members should conduct themselves at public meetings in a manner that is fair, understanding, and gracious as circumstances permit. Members should be considerate of all interests, attitudes and differences of opinion. Members should take care to observe the appearance and the principle of impartiality. The Commission should ensure that rules and procedures are clear to the public in public meetings. Commissioners will defer to the Chairperson and try to avoid speaker -to -audience conversation. The public hearings purpose is usually to help the Commission act, not engage in debate or argument with the public. Commissioners should not accept gifts from applicants or other persons concerned with matters which have been or might come before the Commission. Commissioners should avoid making statements to the media or public. on matters that have not been presented before the entire Commission. They should be aware that any statements or opinions made to media members could be considered "on the record" by the reporter. Such statements should be made in consideration of the likelihood that they will be printed or broadcasted. Relations with the City Council should also be kept in mind when communicating with the public or the media. Commissioners are considered by the public as members of and spokesperson for the official city family. Since policy decisions are the City Council's sole responsibility, it is inappropriate for Commissioners, as representatives of the City, to publicly criticize established Council policies or Council members. If personal ethical problems arise, resignation from the Commission is appropriate. This does not in any way preclude a Commissioner's responsibility to advocate his or her position on a policy matter prior to an official policy decision. Each. Planning Commissioner shall be paid a fixed sum for each commission meeting attended. The sum to be paid is established by City Council resolution. The City Council may provide such sums as the Council deems reasonable, in its sole discretion, for travel expenses, meals, lodging and related expenses necessarily incurred due to the performance of their official duties, including attendance at seminars, conferences or training courses approved by the City Council. The expenses may be advanced to Commissioners or otherwise paid to them, in accordance with established City Council policies. MARCH lo, 1999 16 Government Code Sections 87100, at seq., requires that public officials avoid any serious conflicts of interest when acting in their official capacities. As a Planning Commissioner, two aspects of these provisions will affect you. First, you are prohibited from participating in decisions about any matter in which you have a financial interest. Second, you are required to file an annual financial disclosure statement. The first financial disclosure statement is due shortly after you are sworn into office. Government Code Section 87100 states under what circumstances influencing a governmental decision is prohibited: No public official at any level of State or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest. Government Code Section 87103 defines what constitutes a "financial interest": An official has a financial interest in a decision within the meaning of Section 87100 if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on: 1. Any business entity in which the public official has a direct or indirect investment worth more than $1,000.00; 2. Any real property in which the public official has a direct or indirect interest worth more than $1,000.00; 3. Any source of income, other than loans by a commercial lending institution in the regular course of business on terms available to the public without regard to official status, aggregating $250.00 or more in value provided to, received by or promised to the public official within 12 months prior to the time when the decision is made; 4. Any business entity in which the public official is a director, officer, partner, trustee, employee, or holds any position of management; for purposes of this section, indirect investment or interest means any investment or interest owned by the spouse or dependent child of a public official, by an agent on behalf of a public official, or by a business entity or trust in which the official, the official's agent, spouse, or dependent children own directly, indirectly, or beneficially a 10 percent interest or greater. MARCH 10, 1998 17 Obviously, if a Commissioner is applying for a zone change for property the Commissioner owns, that Commissioner should not participate in the decision on the zone change. The Commission should be aware, however, that Section 87103(b) also applies to real. property that is indirectly affected by a decision of the Commission. There are specific guidelines applicable to a decision that is indirectly affected by a decision; 1. The effect of a decision is material as to real property in which an official has a direct, indirect or beneficial ownership interest (not including a leasehold interest), if any of the following applies: (a) The real property in which the official has an interest, or any part of that real property is located within a 300 foot radius of the boundaries (or the proposed boundaries) of the property which is the subject of the decision, unless the decision will have no financial effect upon the official's real property interest; (b) The decision involves construction of, or improvements to streets, water, sewer, storm drainage or similar facilities, and the real property in which the official has an interest will receive new or substantially improved services; (c) The real property in which the official has an interest is located outside a radius of 300 feet and any part of the real property is located within a radius of 2,500 feet of the boundaries (or the proposed boundaries) of the property which is the subject of the decision and the decision will have a reasonably foreseeable financial effect of: (1) $10,000.00 or more on the fair market value of the real property in which the official has an interest; or (2) Will affect the rental value of the property by $1,000.00 or more per 12 month period. 2.- The reasonably foreseeable effect of a decision is not considered material as to real property in which an official has a direct, indirect or beneficial interest (not including a leasehold interest), if the real property in which the official has an interest is located entirely beyond a 2,500 foot radius of the boundaries (or the proposed boundaries) of the property which is the subject of the decision; unless: (a) There are specific circumstances regarding the decision, its effect, and the nature of the real MARCH 10,1998 18 property in which the official has an interest, which make it reasonably foreseeable that the fair market value or the rental value of the real property in which the official has an interest will be affected by the amounts set forth in subdivisions (a) (3) (A) or (a) (3) (B) ; and (b) Either of the following apply: (1) The effect will not be substantially the same as the effect upon at least 25 percent of all the properties which are within a 2,500 foot radius of the boundaries of the real property in which the official has an interest; or (2) There are not at least 10 properties under separate ownership within a 2,500 foot radius of the property in which the official has an interest". It is strictly the individual Commissioner's decision whether or not his/her "financial interest" constitutes sufficient reason to disqualify himself/herself from consideration of a particular matter. It is important that a Commissioner be alert to identify at an early stage any real or potential conflicts of interest, and that he/she acts accordingly. Should a Commissioner need assistance in determining whether a conflict exists, the City Attorney's office may be called. For some potential conflicts, it may be necessary to request an opinion from the Fair Political Practices Commission (FPPC). The City can provide the telephone numbers of appropriate FPPC staff members or place calls on your behalf. Under recent decisions of the FPPC, the fact that a commissioner relies on the opinion of the City Attorney does not protect that commissioner from enforcement actions by the FPPC, if the City Attorney's advice was erroneous. There are a number of other conflict of interest statutes and doctrines which govern such issues as Commission approved contracts in which Commissioners have a financial interest, the holding of two "incompatible" public offices, and other cases in which a Commissioner's ability to render an impartial decision could be questioned. The City Attorney can provide advice on any of these issues. Commissioners are among those public officials who are required by Government Code Section 87200 to file a statement disclosing investments and interests in real property. The City Clerk will provide the Commissioners with the disclosure report forms. These disclosure statements must be filed shortly after a Commissioner is sworn into office and by April 1st of each following year that the Commissioner remains in office. The originals of these forms are then forwarded by the City Clerk to the Fair Political Practices Commission. MARCH 10, 1998 19 As a Commissioner, if a matter in which you have a financial interest comes before the Planning Commission and the decision will naturally affect that financial interest, you must disqualify yourself from all participation. This means you may not discuss the matter with your colleagues, may not participate in deliberations concerning the matter, must abstain from voting, and refrain from any attempt to influence the decision on this matter. The Commissioner should leave the room while the matter is under consideration in order to avoid violating these prohibitions. The financial interest leading to abstention must be identified and recorded by the Secretary. If a reason is not offered, the Chairperson should request it. There are two exceptions to the general rule. The first exception is that a Commissioner will not be disqualified if the decision will affect the Commissioner's financial interest in the same manner it will affect the public generally. The second exception is that Commissioners may be advocates on their own behalf, provided that they do this as any other citizen would. It is desirable to guard against even the suspicion of unethical conduct by any City official. City officials should be careful to avoid any act or statement that might be misconstrued. Their official behavior should appear to all concerned above reproach. The stated requirements for a regular meeting time and a well publicized notice of any special meeting are necessary to implement the citizens' right to know what their public officials are doing. The Ralph M. Brown Act states in the strongest terms the necessity for openness in public meetings. The Brown Act states: "In enacting this chapter, the legislature finds and declares that the public commissions, boards, and councils, and other public agencies in this state exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly." "The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know, and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created." (Government Code, Title 5. Section 54950) The ]Brown Act's provisions may apply to meetings of less than quorum committees, of boards or commissions, but not to social gatherings where no action is taken or commitment made related to City affairs. MARCH 110, 1998 20 Responsibility to know current Brown Act revisions rests with each Commissioner. In general terms, the following explains the basic steps required by the California Environmental Quality Act (CEQA). Each City is required to adopt its own local guidelines for implementing CEQA. STEP 1. Project application received. (a) Staff decides whether the proposed activity is subject to CEQA or exempt. (1) "Exempt" means not within the definition of "project", or that it is ministerial, an emergency project, or categorically exempt. (b) An exempt project requires no further action under CEQA or it's guidelines. (1) The applicant should be notified of the determination. (State Guidelines, §15374 and §15062 and Public Resource Code §21167 (d). (c) Staff reports the environmental determination to the Planning Commission when proposed action on the project is before the Commission. STEP 2. Project is subject to CEQA. (a) To determine if a project may have a significant effect on the environment, staff conducts and prepares a written Initial Study. (1) An Initial Study consist of a completed Environmental Checklist plus staff's analysis of environmental effects. (b) After determining that an Initial Study will be prepared, staff consults informally with other agencies having jurisdiction over the project as to whether an Environmental Impact Report (EIR) or Negative Declaration declaring the project will not have significant environmental impacts should be prepared. (1) Staff may also consult with the applicant during or immediately after the Initial Study's preparation and determine whether the applicant is willing to modify the project to MARCH 10,1999 21 reduce or eliminate any significant effects identified in the Initial Study. (c) If the proposed project involves the issuance of a permit, lease, license or other entitlement for use, the City must determine in writing, within 30 days from the applicant's receipt, if the application is "complete". (1) A written notice of this determination must be sent to the applicant. (2) If the application is not complete, the notice must inform the applicant of all information required to make the application "complete". (3) If the application is complete, the notice should so inform the applicant and may inform the applicant that an EIR or Negative Declaration will be required. STEP, 3. Initial Study indicates the project may have a significant effect on the environment. (a) Staff or applicant may suggest project revisions which, when implemented will result in the project having no significant environmental effects. (1) If this occurs, the project should be formally revised to reflect these "mitigation measures" and follow procedures in Step 4 (listed below). (b) If the project may still result in one or more significant environmental effects after mitigation measures are added, follow procedures in Step 7 (listed on page 24). (c) If the project involves the issuance of a permit, lease, license or other entitlements for use, the City has 30 days from the date the application was determined "complete" within which to decide if a Negative Declaration or ETR is ems i rad _ STEP 4. Initial Study indicates that the project will not have a significant effect on the environment. (a) Staff prepares a proposed Negative Declaration (in accordance with State Guidelines §§15070, 15071, 15072, 15074, and 15075) including mitigation measures, if any, and attaches a copy of the Initial Study, documenting reasons to support its findings. MARCH 10, 1998 22 (1) A Negative Declaration is a written statement briefly describing the reasons- that a proposed project will not have a significant effect on the environment and does not require the preparation of an environmental impact report (CEQA Section 21064). (2) Mitigation measures require a mitigation monitoring program which must be prepared and adopted at the same time the Negative Declaration is adopted. (b) Public notice that a Negative Declaration has been prepared must be given before it is approved/ disapproved by the Commission (Guidelines $15072). (1) Public review must be no less than 20 days, unless State Clearinghouse review is required. (2) State Clearinghouse review requires that public review be extended to 30 days. (3) Notice for the proposed Negative Declaration must also be filed with the County Clerk, who must post the notice within 24 hours after receipt of the proposed negative declaration for a 30 day period. (c) The City must consult with, and solicit comments from, each agency with jurisdiction over the project by law, consult with persons having special expertise (State. Guideline §15073), and send a copy of the proposed Negative Declaration to these agencies. (d) If the project is of statewide, regional, or area wide significance, the proposed Negative Declaration must be sent to the State Clearinghouse for review. (1) For a project involving the issuance of a permit, lease, license, certificate or other entitlement for use, the Negative Declaration must be comRlgt„ed and ready for review by the Commission within 105 days (plus a reasonable extension if the developer/ applicant agrees) from the date the project application was determined "complete". STEP 5. Negative Declaration preparation. (a) Planning Commission or Council must review and consider the Initial Study, proposed Negative Declaration, any comments received and staff's MARCH 10, 1998 23 analysis of those comments and approve or disapprove the Negative Declaration prior to making any determination on the project. (1) A project can not be approved until a Negative Declaration has been approved or an EIR has been certified. (2) If the Commission finds that the proposed project may have a significant environmental impact, the Commission rejects the Negative Declaration and asks for an EIR to be prepared. (3 ) The City can approve or disapprove a project for which a Negative Declaration is prepared within three months (plus a 90 day extension if the developer/ applicant agrees) from the date the Negative Declaration is adopted; otherwise the project may be automatically approved by operation of law. STEP 6. Negative Declaration approved. (a) A Notice of Determination (NOD) must be filed with the County Clerk. (1) If the Negative Declaration includes a finding of no adverse effect on wildlife, a Certificate of Fee Exemption (The Fish and Game Code §710.5 et seq.) must be filed with the NOD. STEP 7. There is or may still be a significant effect. (a) A draft EIR must be prepared (State Guideline §15064). (b) A draft EIR must also be prepared if members of the public present substantial evidence that the project may have a significant effect on the environment (State Guideline 815064). STEP 8. EIR preparation. (a) The City must send, by certified mail, a Notice of Preparation (NOP) to each agency with juris- diction over the project providing the responsible agencies with sufficient information describing the project and the potential environmental effect to enable the responsible agency to make a meaningful response. MARCH. 10, 1999 24 (1) The NOP must also be filed with the County Clerk, who must post the notice for a 30 day period. (b) Before completing a draft EIR, staff must consult with other agencies having jurisdiction over the project concerning the scope and content of the EIR. The other agencies have 30 days to respond and the draft EIR cannot be circulated for review and comment until that time has lapsed (State Guidelines §15082). STEP 9. After the draft EIR's completion. (a) A Notice of Completion (NOC) must be filed with the Secretary for Resources and notice stating the significant effects on the environment, if any, anticipated as a result of the project and an opportunity to review and comment on the EIR must be given to the public, along with the location at which all the documents referenced in the draft EIR are available for review. (1) A 30 day minimum public review and comment period is required. (b) The draft EIR must be sent to other agencies having jurisdiction over the project and Trustee Agencies. (c) If the project is one of statewide, regional or area wide significance, the draft EIR must also be sent to the State Clearinghouse for review. (1) A minimum 45 day public review period is required. STEP 10. Public Hearing. (a) A public hearing on the draft EIR may be conducted. CEQA does not require, but encourages public hearings. (1) If a hearing is held, it must be properly noticed (State Guidelines SS15087 and 15202). STEP 11. Final EIR. (a) Staff assembles the final EIR which includes the draft EIR plus public and other comments and responses to significant issues raised in the comments. MARCH 10, 1998 25 (b) At least 10 days before certifying a final EIR as complete, a proposed written response must be provided to each public agency that commented on the EIR. STEP 12. Certification of EIR. (a) The Commission reviews and considers the final EIR and makes the findings required by CEQA and the State Guidelines prior to approving the project, including adoption of a mitigation monitoring program. (1) No project for which an EIR is required can be approved unless such findings have been made 'for each significant impact identified in the EIR. (b) Possible findings are: (1) Changes or -alterations have been required in ... the project which avoid or substantially lessen the significant environmental effect ... or (2) Such changes or alterations are within the responsibility and jurisdiction of another specific public agency ... or (3) Specific economic, social, or other considerations make infeasible the mitigation measures or project alternatives identified in the final EIR (Guidelines §15091 (a)). (c) If the Commission makes either finding (2) or (3) for any impact identified in the EIR, CEQA requires the Commission to balance the benefits of a proposed project against its unavoidable environmental risks in determining whether to approve the project. (1) The Commission cannot approve the project unless it finds that the project's benefits outweigh the unavoidable adverse environmental effects. This finding is commonly referred to as a "Statement of Overriding Considerations". (d) Commission makes a decision on the project. (1) This can be at the same meeting as the decision on the EIR. MARCH 10, 1998 26 (2) The City must approve or disapprove the application within six months of the date the EIR is certified or the project may be approved by operation of law. STEP 13. If The Commission approves a project for which an EIR was prepared. (a) An NOD must be filed with the County Clerk, including a statement of mitigation measures, the Commission's decision, and a statement that an EIR was prepared and certified as required. (1) If the project requires discretionary approval from a state agency the NOD must also be filed with the Secretary for Resources (State Guidelines 815094). From time to time the Planning Commission will be called upon to exercise its quasi-judicial function. In other words, the Commission will sit as a "judge". Examples of quasi-judicial decisions include decisions on whether a variance or a conditional use permit is appropriate for a particular piece of property. The following discussion, excerpted from a December 30, 1982 publication by the State Office of Planning and Research, discusses the importance of the Commission making findings showing the reasons the Commission made its decision. Any discussion of findings and decisions affecting land use must begin with the seminal case in the area, Topanga Association for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506 (1974). In Topanga, the court defined findings, explained their purposes, and showed when they are needed. The Topanga court defined findings as legally relevant subconclusions which expose the agency's mode of analysis of facts, regulations, and policies, and which bridge the analytical gap between raw data and ultimate decision (Topanga, supra, at pp. 515 and 516). In other words, findings are the legal footprints local administrators and officials leave to explain how they progressed from the facts through established standards to the decision. MAtcH 10, 1998 27 The Topanga court outlined five purposes for making findings, three are relevant mainly to the decision-making process and two are relevant to judicial functions. Findings should: 1. Provide a framework for making principled decisions, enhancing the integrity of the administrative process; 2. Help make analysis orderly and reduce the likelihood that the agency will randomly leap from evidence to conclusions; 3. Serve a public relations function by helping to persuade the parties that the administrative decision-making is careful, reasoned and equitable; 4. Enable the parties to determine whether and on what basis they should seek judicial review and remedy; and, 5. Apprise a reviewing court of the basis for the agency's action. Topanga, supra, at pp. 514 and 516 [fn. 14] While the four purposes seem clear enough, State law has not clearly distinguished between, the situations which require findings from those which do not. Absent a specific legislative requirement for findings, the courts determine when they are necessary. In general, case law has required findings for land use decisions that are adjudicative in nature (also known as quasi-judicial, administrative, or adjudicatory decisions). In this type of decision, a reviewing body holds a hearing, as required by the constitution, State statute, or local ordinance, takes evidence, and bases its decision on the evidence. The action involves applying a fixed rule, standard, or law to specific facts and a specific parcel of land. Examples include variances, use permits, and tentative subdivision and parcel maps. In each case local officials apply existing land use or other development standards to specific parcels. Not only do these approvals constitute adjudicative acts, their denials are adjudicative in nature as well. Especially in the case of tentative subdivision maps, if the decision-making body maker certain statutory findings, it must deny the subdivision map MARCH to, 1998 28 (Government Code Section 66474). If the body makes certain other findings, it has the option of denying the subdivision (Government Code 566474.6). By way of comparison, findings are not necessary for legislative or quasi -legislative acts, unless specifically required by statute (Ensign Bickford Realty Corp. v. City Planning Commission [1977] 68 Cal.App.3d 467, 473). In contrast with adjudicative acts, legislative acts generally formulate a rule to be applied to all future cases rather than applying an existing rule to a specific factual situation. Examples are the adoption or amendment of a general plan or zoning ordinance. Even though a zone change or general plan amendment may be specific to a particular parcel, it is still a legislative act because its underlying effect is legislative in nature, regardless of the size or geographic scope of the property affected (Arrnel Development Company v. City of Costa Mesa [1980] 28 Cal.3d 511, 514; Karlson v. City of Camatilto [1980] 100 Cal.App.3d 789, 799). In resolving the question of at what point in the process should the decision-making body adopt findings, Topanga again provides guidance. Topanga states that findings should enhance the integrity of the administrative process, help make analysis orderly, and reduce the likelihood that the agency will randomly leap from evidence to conclusions. This requires the decision - makers to identify the reasons supporting a decision prior to taking action. However, in the daily reality of acting on a myriad of different land use applications, a local body may face a number of factors making it difficult to formulate detailed and well -articulated findings and reduce them to writing at the point of the decision. Factors affecting this include the nature of the decision, the evidence, and the presence or absence of external factors like State mandated time limits requiring local agencies to act within specific time periods. The following example illustrates how these factors operate to influence the adoption of findings. Late in the evening, after lengthy public testimony and extensive post -hearing discussion of the basis of the decision, a city planning commission has reached consensus to deny a tentative subdivision, contrary to the staff's recommendation. The staff report contains suggested findings supporting the tentative subdivision, and environmental findings supporting the adoption of a Negative Declaration. The commission must act on the application that evening because of statutory time limits. For decisions affecting subdivision maps, the commission acts by motion to adopt a resolution, and the sponsor of the approving MARCH 10, 1998 29 motion, a lay person, has difficulty articulating all the reasons which have been discussed for approving the project. Because of the time limits, there is no future opportunity to incorporate the findings into the decision. This illustration shows several practical difficulties in adopting adequate findings. First, lay commissioners may not readily assimilate new information and may have difficulty verbalizing their rationale in the form of structured findings needed to support their decisions, especially if such decisions closely follow lengthy public hearings and statutory time limits are present. Second, if the resolution must be adopted that night due to statutory time limits, there is no opportunity to direct staff to prepare a resolution incorporating the necessary findings supporting the action taken, the preferred approach. In this example, had the commission agreed with the staff analysis, it could have adopted findings by reference to the staff report, since making findings by reference is permissible (McMillan v. American General Finance Company (1976) 60 Cal.App.3d 175, 184). Many agencies have their staff prepare proposed findings for their decision -makers to consider and then use, revise or reject. The suggested findings can help the decision - makers identify the appropriate information, policies, and regulations governing the proposed project and guide them in making the necessary findings. Of course, before adopting any staff -prepared findings, the decision -makers must objectively review and, where necessary, revise them to make sure that they accurately reflect both the evidence in the record (which is likely to be supplemented in the hearing after the preparation of the staff report) and their own conclusions. In addition, failure to objectively review these findings by the decision-making body exposes the City to a challenge for acting without appropriate deliberation. That is, in the end, the commission would not adopt findings of their own decision but, instead, would adopt findings reflecting the staff opinion of what the decision should be. Where the opportunity exists, many local land use decision-making bodies take tentative action and then direct staff to draft a written statement of the supporting reasons as reflected in the evidence and the deliberative discussion. The staff draft can then be reviewed for adoption as the agency's findings at a later meeting. This method provides the opportunity to carefully review the entire record, including the evidence presented during the public hearings. Of course, if this review of the record reveals that: there is an evidentiary gap, the decision -makers must be prepared to alter their decision. Whether or not a decision-making body relies on staff -prepared findings pre- or post -hearing, the goals are the same. These goals are to ensure that decisions are made in an open and MARCH lo, 1998 30 reasonable manner, based upon articulated reasons which in turn are based upon the evidence in the record. California courts have demonstrated their concern for rational and open land use decisions that protect the public interest. The Topanga court offered four purposes for findings, all emphasizing these concerns. The now familiar language of "bridging the analytical gap between raw data and ultimate decision" leaves no doubt that courts intend decision -makers to follow an orderly path of logic before arriving at their decisions. While the political reality of making land use decisions involves compromises at times, the political reality must accommodate rational and dispassionate deliberation in the decision-making process. In the area of land use planning, local decision-making bodies must adopt findings when making adjudicative decisions -variances, conditional use permits, tentative subdivision and parcel maps, and public street abandonments. Further, Public Resources .Code $21081 requires decision-making bodies to make one or more findings when an Environmental Impact Report identifies significant effects of .a proposed project. Also, some State statutes require findings before jurisdictions approve certain legislative decisions, such as growth limiting general plans and growth limiting zoning ordinances. The process of making land' use decisions has its rough edges: economic impacts, election campaigns, tender egos, and neighborhood conflicts. Making findings as an integral part of the decision-making process will not guarantee that all of the rough edges will be smoothed out. However, if decision-making officials take findings seriously, they can reduce the public's doubts about the wisdom of their decisions and reduce public skepticism about their motivations. Using findings builds an excellent defense for local officials' decisions, and ultimately more justly serves the public purposes of regulating land use. A Conditional Use Permit (or C.U.P.) is an application filed in order to establish a use which is not automatically permitted in the zone. The conditional use permit procedure was created in order that controls could be placed upon particular uses ofland so that the use will not adversely affect neighboring properties. Land uses are either automatically permitted, conditionally permitted by approval of a conditional use permit, or prohibited. A prohibited use, cannot be allowed through a conditional use permit. MARCH lo, t"a 31 In granting a C.U.P., specific findings must be made. Typically, there are: (1) the proposed use and development will be consistent with the General Plan; (2) the site is adequate in size, shape, topography, location, utilities, and other factors to accommodate the proposed use and development; (3) there will be adequate street access and traffic capacity; (4) there will be adequate water supply for fire protection; and (5) the proposed use and development will be compatible with the intended character of the area. The Diamond Bar Zoning Code may have additional or slightly different criteria. A Variance is an application requesting an exception from a standard required by the zoning ordinance. For example, an applicant may file for a Variance to exceed the height restriction on a house or a reduction in the number of parking spaces provided at at restaurant. A Variance to permit a use not authorized in the zone district - a "Use Variance" - is prohibited by State law. In granting a Variance, the reviewing body must make specific findings consistent with State law. These are: (1) special circumstances applicable to the property exist, such as its size, shape, topography, location or surroundings; (2) the strict application of the zoning ordinance would deprive the property owner of privileges enjoyed by other property owners in the vicinity and the same zone district; and (3) granting of the Variance will not constitute a special privilege. A Tentative Tract Map or Parcel Map (subdivision map) is a map recording the division of land for the purpose of sale, lease, or financing, and is governed by the Subdivision Map Act. A subdivision of five or more parcels requires a tentative and final map,. A subdivision of four or fewer parcels requires just a parcel map. In granting a Tract Map or Parcel Map, the reviewing body must make:: specific findings consistent with State law. These are: (1) the proposed map is consistent with applicable general and specific plans; (2) the design or improvement of the proposed subdivision is consistent with applicable general and specific plans; (3) the site is physically suitable for the type of development; (4) the site is physically suitable for the proposed density of development; (5) the design of the subdivision or the proposed improvements are not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat; (6) the design of the subdivision or type of improvements is not likely to cause serious public health problems; (7) the design of the subdivision or the type of improvements will not conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision; (8) the Commission has considered the effect of the tract map (parcel map] on the housing needs of the region as set forth in the City's Housing Element; and (9) the design of the subdivision provides, to the extent feasible, for future passive or natural heating or cooling opportunities. MARCH 10,1998 32 A Sone Change is a request - generally by a private individual but occasionally by the City - to rezone a property froip one zone district to another zone district. For example, a petition may be filed to rezone a property from a residential zone to a commercial zone. Other than being in conformance with the general plan, no specific findings are necessary for a zone change, as this is a legislative matter. In general, specific findings are necessary in connection with action upon an application for a subdivision, variance, conditional use permit, specific plan, and other discretionary permits, and revocation of all of the above discretionary permits. MARCH 10, 1998 33 SUMMARY Congratulations on your appointment to the Planning Commission. As a Commissioner, your activities during your tenure will have a significant impact on the residents of Diamond Bar. The City sincerely hopes that you will serve your community always with the public good firmly in mind. The City also trusts that you will listen to all sides of all issues, discern between the important concerns and the self-serving ones, weigh the options with a critical mind and an open heart, and base your decisions on eL commitment to serve the public responsibly. The City of Diamond Bar applauds your involvement and support of city government, where citizens can directly address local political and economic concerns and seek appropriate representation. BCH to, 1999 34 APPENDIX A The Brown Act I A THE RALPH K BROWN ACT California Government Code Sections 54950 through 54962 ,-'tis .kiilencled April 1, 1994 54950. In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. 54950.5. This chapter shall be known as the Ralph NI. Brown .act. 54951. .as used in this chapter, "local agency" means a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency. 54952. As used in this chapter, "legislative body" means: (a) The governing body of a local agency or any other local body created by state or federal statute. (b) A commission, committee, board, or other body of a local agency, whether permanent or temporary, decisionmaking or advisory, created by charter, ordi- nance, resolution, or formal action of a legislative body. However, advisory commit- tees, composed solely of the members of the legislative body which are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter. (c) A board, commission, committee, or other multimember body that governs a private corporation or entity that either: (l) Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation or ell tiEN. (2) Receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing bode by the legislative body of the local agency. (d) The lessee of any hospital the whole or part of which is first leased pursuant to subdivision (p) of Section 32121 of the Health and Safety Code after January 1, 1994, where the lessee exercises all material authority of a legislative body of a local agency delegated to it by that legislative body whether the lessee is organized and operated by the local agency or by a delegated authority. 54952.1. Any person elected to serve as a member of a legislative body who has not vet assumed the duties of office shall conform his or her conduct to the require- ments of this chapter and shall be treated for purposes of enforcement of this chapter as if he or she has already assumed office. 23 Intent Title "local agency": public agencies "legislative body": governing body body created by formal action private corporation: exercises delegated authority private corporation: receives public funds/appointed legislative body member on its governing board lessee of a district hospital newly -elected members 24 1 California Government Code copies of the Brown Act for 54952.7. A legislative body of a local agency may require that a copy of this chapter members, appointees be given to each member of the legislative body and ani person elected to serve as a member of the legislative body who has not assumed the duties of office .fin elected legislative body of a local agency may require that a copy of this chapter be given to each member of each legislative body all or a majority of whose members are appointed byor under the authority of the elected legislative body. all meetings must be open and public 54953. (a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter. 54952.2. (a) As used in this chapter, "meeting" includes any congregation of a "meeting defined" majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains. majority cannot use direct (b) Except as authorized pursuant to Section 54953, any use of direct communica- communication, personal intermediaries tion, personal intermediaries, or technological devices that is employed by a or technological devices majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the members of the legislative body is prohibited. exceptions: (c) Nothing in this section shall impose the requirements of this chapter upon any of the following; 1. individual contacts (1) Individual contacts or conversations between a member of a legislative body and any other person. 2. conferences (2) The attendance of a majority of the members of a legislative body at a confer- ence or similar gathering open to the public that involves a discussion of issues of general interest to the public or to public agencies of the type represented by the legislative body, prodded that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specified nature that is within the subject matterjurisdiction-of the local agency. Nothing in this paragraph is intended to allow members of the public free admission to a conference or similar gathering at which the organizers have required other . participants or registrants to pay fees or charges as a condition of attendance. 3. community meetings (3) The attendance of a majority of the members of a legislative body at an open and publicized meeting organized to address a topic of local community concern by a person or organization other than the local agency, prodded that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the subject matterjurisdiction of the legislative body of the local agency. 4. another body of the local agency (4) The attendance of a majority of the members of a legisladve body at an opert and noticed meeting of another body of the local agency, provided that a majoricy of the members do not discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency. 5. social or ceremonial event (5) The attendance of a majority of the members of a legislative body at a purely social or ceremonial occasion, provided that a majority of the members do not discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the legisladve body of the local agency. "action taken" 54952.6. As used in this chapter, "action taken" means a collective decision rnade by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislad%e body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance. copies of the Brown Act for 54952.7. A legislative body of a local agency may require that a copy of this chapter members, appointees be given to each member of the legislative body and ani person elected to serve as a member of the legislative body who has not assumed the duties of office .fin elected legislative body of a local agency may require that a copy of this chapter be given to each member of each legislative body all or a majority of whose members are appointed byor under the authority of the elected legislative body. all meetings must be open and public 54953. (a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter. California Government Code (b) (1) l,'oavithstanding any other provision of law, the legislative body of a local agency may use %ideo teleconferencing for the benefit of the public or the legisla- tive body of a local agency in connection with any meeting or proceeding autho- rized by law. (g) The Ilse of %ideo teleconferencing, as authorized by this chapter, shall be limited to the receipt of public comment or testimony by the legislative body and to deliberations of the legislative body. (3) if the legislative body of a local agency elects to use video telecon ferencing, it shall post agendas at all video teleconference locations and adopt reasonable regulations to adequately protect the statutory or constitutional rights of the parties or the public appearing before the legislative body of a local agency. (4) The term "video teleconference" shall mean a system which pro%ides for both audio and %isual participation between all members of the legislative body and the public attending a meeting or hearing at any %ideo teleconference location. (c) \o legislative body shall take action by secret ballot, whether preliminary or final. 23 video teleconferencing, no secret ballots 54953.1. The provisions of this chapter shall not be construed to prohibit the grand jury testimony numbers of the legislative body of a local agency from giving testimony in private before a grand jury, either as individuals or as a body. 54953.3. A member of the public shall not be required, as a condition to atten- public cannot be required to dance at a meeting of a legislative body of a local agency, to register his or her register to attend meeting name, to provide other information, to complete a questionnaire, or otherwise to fulfill any condition precedent to his or her attendance. If an attendance list, register, questionnaire, or other similar document is posted at or near the entrance to the room %where the meeting is to be held, or is circulated to the persons present during the meeting, it shall state clearly that the signing, registering, or completion of the document is voluntary, and that all persons may attend the meeting regard- less of whether a person signs, registers, or completes the document. 54953.5. (a) .any person attending an open and public meeting of a legislative body public can tape meetings of a local agency shall have the right to record the proceedings %vith an audio or %ideo tape recorder or a still or motion picture camera in the absence of a reason- able finding by the legislative body of the local agency that the recording cannot continue %Nithottt noise, illumination, or obstruction of ,,ie%v that constitutes, or «ould constitute, a persistent disruption of the proceedings. (b) .fit%%• tape or film record of an open and public meeting made for whatever recordings are public record purpose be or at the direction of the local agency shall be subject to inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division i of Title 1), but, notwithstanding Section 34090, may be erased or destroyed 30 days after the taping or recording. Any inspection of a video or tape recording shall be pro%ided without charge on a video or tape player made available by the local agency. 54953.6. No legislative body of a local agency shall prohibit or otherwise restrict broadcast of open meetings the broadcast of its open and public meetings in the absence of a reasonable finding that the broadcast cannot be accom plished without noise, illumination, or obstruction of %iew that %would constitute a persistent disruption of the proceedings. 54953.7. Nonvithstanding any other pro%ision of law, legislative bodies of local local agencies can impose stricter agencies may impose requirements upon themselves which allow greater access to requirements an themselves their meetings than prescribed by the minimal standards set forth in this chapter. In addition thereto, an elected legislative body of a local agency may impose such 26 regular meetings set by ordinance or other rule meetings must be within the local agency's territory exceptions California Government Code requirements on those appointed legislative bodies of the local agency of which all or a majority of the members are appointed by or under the authority of the elected legislative body. 54954. (a) The legislative body of a local agency shall pro%ide, by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body, the time and place for holding regular meetings. (b) Regular and special meetings of the legislative body shall be held within the boundaries of the territory over which the local agency exercises jurisdiction, except to do any of the following: (1) Comply with state or federal law or court order, or attend a judicial or adminis- trative proceeding to which the local agency is a para•. (2) Inspect real or personal property which cannot be conveniently brought«ithin the boundaries of the territory over which the local agency exercises jurisdiction provided that the topic of the meeting is limited to items directly related to the real or personal property. (3) Participate in meetings or discussions of multiagency significance that are outside the boundaries of a local agency's jurisdiction. However, any meeting or discussion held pursuant to this subdivision shall take place %Nithin thejurisdiction of one of the participating local agencies and be noticed by all participating agencies as provided for in this chapter. (4) `feet in the closest meeting facility if the local agency has no meeting facility within the boundaries of the territory over which the local agency exercises jurisdiction, or at the principal office of the local agency if that office is located outside the territory over which the agency exercises jurisdiction. (5) Meet outside their immediate jurisdiction with elected or appointed officials of the United States or the State of California when a local meeting would be impractical, solely, to discuss a legislative or regulatory issue affecting the local agency and over which the federal or state officials have jurisdiction. (6) Meet outside their immediate jurisdiction if the meeting takes place in or nearby a facility owned by the agency, provided that the topic of the meeting is limited to items directly related to the facility. (7) Visit the office of the local agency's legal counsel for a closed session on pending litigation held pursuant to Section 34936.9, when to do so would reduce legal fees or costs. . (c) Meetings of the governing board of a school district shall be held s.ithin the district except under the circumstances enumerated in subdivision (b), or to do any of the following: (1) Attend a conference on nonadversarial collective bargaining techniques. (2) Interview members of the public residing in another district with reference to the trustees' potential employment of the superintendent of that district. (3) Interview a potential employee from another district. (d) Meetings of a joint powers authority shall occur within the territory of at least one of its member agencies, or as provided in subdivision (b). However, ajoint powers authority which has members throughout the state may meet at any facility in the state which complies with the requirements of Section 34961. (e) If, by reason of fire, flood, earthquake, or other emergency, it shall be unsafe to meet in the place designated, the meetings shall be held for the duration of the emergency at the place designated by the presiding officer of the legislative body or his or her designee in a notice to the local media that have requested notice pursuant to Section 3.1936, by the most rapid means of communication available at the time. California Government Code 54954.1. The legislative body which is subject to the prosisions of this chapter shall give mailed notice of every regular meeting, and any special meeting which is called at least one week prior to the date set for the meeting, to any person whohas Filed a written request for that notice with the legislative body. Any mailed notice required pursuant to this section shall be mailed at least one week prior to the date set for the meeting to which it applies except that the legislative body may give the notice as it deems practical of special meetings called less than seven days prior to the date set for the meeting. .-%„y request for notice: filed pursuant to this section shall be valid for one year from the date on which it is Filed unless a renewal request is filed. Renewal requests for notice shall be filed within 90 days after January 1 of each year. The failure of any person to receive the notice given pursuant to this section shall not constitute grounds for any court to invalidate the actions of the legislative body for which the notice was given. The legislative body may establish a reasonable annual fee for sending the notice based on the estimated cost of providing the service. 54954.2. (a) At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an item generally need not exceed 20 words. The agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public. No action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights under Section 3495.1.3. In addition, on their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification, make a brief announcement, or make a brief report on his or her own actitities. Furthermore, a member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may provide a reference to staff or other resources for factual information, request staff to report back to the body at a subsequent meeting concerning any matter , or take action to direct staff to place a matter of business on a future agenda. (b) Nonyithstanding subdivision (a), the legislative body may take action on items of business not appearing on the posted agenda under any of the conditions stated item pursuant to this subdhision, the legislative body below. Prior to discussing any shall publicly identify the item. (1) Upon a determination by a majorin. vote of the legislative body that an. emergency situation exists, as defined in Section 34956.5. (2) upon a determinarion by a nyo-thirds vote of the legislative body, or, if less than avo-thirds of the members are present, a unanimous vote of chose members present, that there is a need to take immediate action and that the need for action came to the attention of the local agency subsequent to the agenda being posted as specified in subdl%isior. (a), (3) The item was posted pursuant to subdivision (a) for a prior meeting of the legislative body occurring not more than Gee calendar days prior to the date action is taken on the item, and at the prior meeting the item was continued to the meeting at ti,hich action is being taken. 54954.3. (a) Every agenda for regular meetings shall provide an opportunin• for members of the public to directly address- the legislative body on any item of interest to the public, before or during the legislative body's consideration of the 27 mailed notice regular meeting agendas: 72 -hour notice and posting action on non -agenda items emergency situation need for immediate action item continued from meeting less than 5 days earlier public opportunity to address the legislative body 28 1 California Government Code item, that is within the subject matter jurisdiction of the legislative body, prodded that no action shall be taken on any item not appearing on the.agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2. However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a.public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee's consider- ation of the item, unless the item has been substantially changed since the commit- tee heard the item, as deter mined by the legislative body. Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item. reasonable constraints (b) The legislative body of a local agency may adopt reasonable regulations to on public testimony• ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker. of policies (c) The legislative body of a local agency shall not prohibit public criticism of the public criticism procedures, programs or services policies, procedures, programs, or services of the agency, or of the acts or omis- sions of the legislative body. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherv.ise provided by law. reimbursement of costs 54954.4. (a) The Legislature hereby finds and declares that Section 12 of Chapter 641 of the Statutes of 1986, authorizing reimbursement to local agencies and school districts for costs mandated by the state pursuant to that act, shall be interpreted strictly. The intent of the Legislature is to provide reimbursement for only those costs which are clearly and unequivocally incurred as the direct ant: necessary result of compliance with Chapter 641 of the Statutes of 1986. (b) In this regard, the Legislature directs all state employees and officials invol ed in reviewing or authorizing claims for reimbursement, or otherwise participating in the reimbursement process, to rigorously review each claim and authorize only those claims, or parts thereof, which represent costs which are clearly and uc- equivocally incurred as the direct and necessary result of compliance with Chapter 641 of the Statutes of 1986 and for which complete documentation exists. For purposes of Section 34934.2, costs eligible for reimbursement shall only include the actual cost to post a single agenda for any one meeting. (c) The Legislature hereby finds and declares that complete, faithful, and uninter- rupted compliance with the Ralph M. Brown Act (Chapter 9 (commencing with Section 54930) of Part 1 of Division 2 of Title 5 of the Government Code) is a matter of overriding public importance. Unless specifically stated. no furore Budget Act, or related budget enactments, shall, in any manner, be interpreted to suspend, eliminate, or othenvise modify the legal obligation and duty of local agencies to fully comply with Chapter 641 of the Statutes of 1986 in a complete, faithful, and uninterrupted manner. "safe harbors" for 54954.5. For purposes of describing closed session items pursuant to Secdon closed session agendas 54954.2, the agenda may describe closed sessions as provided below. No legislate' e body or elected official shall be in violation of Section 54954.2 or 54956 if the closed session items were described in substantial compliance with this section. Substantial compliance is satisfied by including the information provided belo%,, irrespective of its format. (a) With respect to a closed session held pursuant to Section 54956.7: LICENSE/ license and permit determinations PERMIT DETERMINATION Applicant(s): (Specify number of applicants) California Government Code (b) With respect to every item of business to be discussed in closed session pursuant to Section 5+956.8: CONFERENCE �M-H REAL. PROPERTYNEGOTLaTOR Property: (Specifi. street address, or if no street address, the parcel number or other unique reference, of the real property- under negotiation) Negotiating parties: (SpeciR name of part)• (not -agent)) Under negotiation: (Specif}- whether instruction to negotiator will concern price, terms of paN-ntent, or both) (c) With respect to every item of business to he discussed in closed session pursu- ant ro Section 54956.9: CONFERENCE %117H LEGAL COL'\SEL-EXISTING LITIGATION (Subdivision (a) of Section 54956.9) Name of case: (Specify by reference to claimant's name, names of parties, case or claim numbers) —or— Case name unspecified: (Specifi. whether disclosure %mold jeopardize service of process or existing settlement negotiations) CONFERENCE %arm LEGAL. COUNSEL ANTICIPATED LITIGATION Significant exposure to litigation pursuant to subditision (b) of Section 54956.9: (Specify number of potential cases) (In addition to the information noticed above, the agency may be required to protide additional information on the agenda or in an oral statement prior to the closed session pursuant to subparagraphs (B) to (E), inclusive, of paragraph (3) of subdivision (b) of Section 34956.9.) Initiation of litigation pursuant to subditision (c) of Section 54956.9: (Specif%, number of potential cases) (d) With respect to eters item of business to be discussed in closed session pursuant to Section% 54956.95: LIABIL.M'CL-UNIS Claimant: (Specify name unless unspecified pursuant to Section 51961) Agenct claimed agairtsc (Specif} name) (e) With respect to evert item of business to be discussed in closed session pursu- :ult to Section 54917: THREAT TO PUBLIC SER%ICES OR FACILITIES Consultation %rich: (Specify name of lata enforcement agency and title of officer) PUBLIC EMPLOIEEAPPOINT`[ENT Title: (Specith• description of position to be filled) PUBLIC ENIPLOV,IENT Title: (Specify description of position to be filled) PUBLIC E>IPL0IEE PERFOR.\,L-\-\CE EVAL.U.AMON Title: (Specift pusitiun title of emplo%ee being reviewed) PUBLIC EMPL0IEE DISCIPLINE/DIS.\IISS.-LL/RELE.-ISE (No additional information is required in connection with a closed session to consider discipline, dismissal, or release of a public employee. Discipline includes pntentinl reduction of compensation.) (E) With respect to even item of business to be discussed in closed session pursuant to Section 54937.6 29 real estate negotiations existing litigation anticipated litigation liability claims threats to public services public employees 30 1 California Government Code labor negotiation conference CONFERENCE WITH LABOR NEGOTLkTOR Agency negotiator: (Specify name) Employee organization: (Specify name of organization representing employee or employees in question) — or — Unrepresented employee: (Specify position title of unrepresented employee who is the subject of the negotiations) (g) With respect to closed sessions called pursuant to Section 54967.8: multijurisdictional drug law CASE REVIEW/PLANNING enforcement agency (No additional information is required in connection with a closed session to consider case review or planning.) (h) With respect to every item of business to be discussed in closed session pursuant to Sections 1461, 32106, and 32155 of the Health and Safety Code or Sections 37606 and 37624.3 of the Government Code: hospital exceptions REPORT INVOLVING TRADE SECRET Discussion will concern: (Specify whether discussion will concern proposed new service, program, or facility) Estimated date of public disclosure: (Specify month and year) HEARINGS Subject matter: (Specify whether testimony/deliberation will concern staff privileges, report of medical audit committee, or report of quality assurance committee) tax or assessment hearings 54954.6. (a) (1) Before adopting any new or increased general tax or any new or increased assessment, the legislative body of a city, county, special district, orjoint powers authority shall conduct at least one public meeting at which local officials must allow public testimony regarding the proposed new or increased general tax or new or increased assessment in addition to the noticed public hearing at which the legislative body proposes to enact or increase the general rax or assessment. For purposes of this section, the term "new or increased assessment" does not include any of the following: new or increased taxes (A) A fee which does not exceed the reasonable cost of providing the services, facilities, or regulatory activity for which the fee is charged. (B) A service charge or benefit charge, unless a special district's principal act requires service charges or benefit charges to conform to the regtuiremenu of this section. (C) An ongoing annual assessment if it is imposed at the same or lower amount as any previous year. (D) An assessment which does not exceed an assessment formula or range of assessments previously adopted by the agency or approved b% the voters in the area where the assessment is imposed. (E) Standby or immediate availability charges. (2) The legislative body shall provide at least 45 days' public notice of the public hearing at which the legislative body proposes to enact or increase the general tax or assessment. The legislative body shall provide notice for the public meeting at the same time and in the same document as the notice for the public hearing, but the meeting shall occur prior to the hearing. (b) (1) The joint notice of both the public meeting and the public hearing required by subdivision (a) with respect to a proposal for a new or increased general tax shall be accomplished by placing a display advertisement of at least one- eighth page in a newspaper of general circulation for three weeks pursuant to Section 6063 and by a first-class mailing to those interested parties who have filed a written request with the local agency for mailed notice of public meetings or hearings on new or increased general taxes. The public meeting pursuant to California Government Code subdivision (a) shall take place no earlier than 10 days after the first publication of thejoint notice pursuant to this subdivision. The public hearing shall take place no earlier than seven days after the public meeting pursuant to this subdi%ision. Nonvithstanding paragraph (2) of subdivision (a), thejoint notice need not include notice of the public meeting after the meeting has taken place. The public hearing pursuant to subdivision (a) shall take place no earlier than 43 days after the first publicaron of thejoint notice pursuant to this subdivision. The public hearing shall take place no earlier than seven days after the public meeting pursuant to this subdivision. Any written request for mailed notices shall be effective for one'year from the date on which it is filed unless a renewal request is Filed. Renewal requesrs for mailed notices shall be Fled on or before April 1 of each year. The legislative body mac establish a reasonable annual charge for sending notices based on the estimated cost of prodding the sertice. (2) The notice required by paragraph (1) of this subdivision shall include, but not be limited to, the following: (A) The amount or rate of the tax. IF the tax is proposed to be increased from anv previous year, thejoint: notice shall separately state both the existing tax rate and the proposed tax rate increase. (B) The actkin to be taxed. (C) The estimated amount of revenue to be raised by Lhe tax annually. (D) The method and ^requency for collecting the tax. (E) The dates, times, and locations of the public meeting and hearing described in subdkision (a). (F) The phone number and address of an individual, office, or organization that interested persons may contact to receive additional information about the tax. (c) (1) The joint notice of both the public meeting and the public hearing required by subdivision (a) with respect to a proposal for a new or increased assessment on real prcperc shall be accomplished through a mailing, postage prepaid, in the United States mail and shall be deemed given when so deposited. The public meeting pursuant to subdivision (a) shall take place no earlier than 10 days after thejoint milling pursuant to this subdivision. The public hearing shall cake place no earlier than seven days after the public meeting pursuant to this subdivision. The envelope or the coyer of the mailing shall include the name of the local agency and the return address of the sender. This mailed notice shall be in at least 10 -point [}pe and shall be given to all property owners proposed to be subject to the new or increased assessment by a mailing by name to those persons whose names and addresses appear on the last equalized county assessment roll or the State Board of Equalization assessment roll, as the case may be. (2) The joint notice rewired by paragraph (1) of this subdivision shall include, but not be limited to, the following: (A) The estimated auiotutt of the assessment per parcel. 1f the assessment is proposed to be increased from any previous }'ear, thejoint notice shall separately state both the amount of the existing assessment and the proposed assessment increase. (B) A general description of the purpose or improvements that the assessment will fund. (C) The address to which property owners may mail a protest against the assessment. (D) The phone number and adclress of an individual, office, or organization that interested persons maY contact to receive additional information about the assessment. 31 new or increased assessments 32 California Government Code (E) A statement that a majority protest will cause the assessment to be abandoned if the assessment act used to levy the assesstnent so provides. Notice must also state the percentage of protests required to trigger an election, if applicable. (F) The dates, times, and locations of the public meeting and hearing described in subdivision (a). (3) Nonyithstanding paragraph (1), in the case of an assessment which is proposed exclusively for operation and maintenance expenses for an entire city, county, or district, or operation and maintenance assessments proposed to be levied on 30,000 parcels or more, notice may be provided pursuant to paragraph (1) of subdivision (b) and shall include the information required by paragraph (2) of subdivision (c). (4) Nonyithstanding paragraph (1), in the case of an assessment proposed to be levied pursuant to Part 2 (commencing with Section 22500) of Division 2 of the Streets and Highways Code by a regional park district, regional park and open - space district, or regional open -space district formed pursuant to.Ar6cle 3 (com- mencing with Section 5500) of Chapter 3 of Division 5 of, or pursuant to Division 26 (commencing with Section 35 100) of, the Public Resources Code, notice may be provided pursuant to paragraph (1) of subdivision (b). (d) The notice requirements imposed by this section shall be construed as additional to, and not to supersede, existing provisions of law, and shall be applied concurrently with the existing provisions so as to not delay or prolong the govern- mental decisionmaking process. (e) This section shall not apply to any new or increased general tax or any nc. or increased assessment that requires an election of either of the follow•ing� (1) The property owners subject to the assessment. (2) The voters within the city, county, special district, or joint powers authoriry imposing the tax or assessment. (f) Nothing in this section shall prohibit a local agency from holding a consoli- dated meeting or hearing at which the legislative body discusses multiple tax or adjourned meetings assessment proposals. (g) The local'agency may recover the reasonable costs of public meetings. public hearings, and notice required by this section from the proceeds of the tax or assessment. The costs recovered for these purposes, whether recovered pursuant to this subdivision or any other provision of law, shall not exceed the reasonable costs of the public meetings, public hearings, and notice. 54955. The legislatize body of a local agency may adjourn any regular, adjourned regular, special or adjourned special meeting to a time and place specified in the order of adjournment. Less than a gtcorum may so adjourn from time to timei'' all members are absent from anv regular or adjourned re;ular meeting the clerk or secretary of the legislative body may declare the meeting adjourned to a stated tithe and place and he shall causen a written notice of the adjournmet to be gi en in the same manner as prodded in Section 54956 for special meetings. unless such notice is waived as provided for special meetings. A copy of the order or notice of adjournment shall be conspicuously posted on or near the door of the place ti,here the regular, adjourned regular, special or adjourned special meeting was held within 24 hours after the time of the adjournment. When a regular or adjourned regular meeting is adjourned as provided in this section, the resulting adjourned regular meeting is a regular meeting for all purposes. When an order of adjourn- ment of any meeting fails to state the hour at which the adjourned meetin; is to be held, it shall be held at the hour specified for regular meetings hr ordinance. resolution, by law, or other rule. California Government Code 54955.1. Am hearing being held, or noticed or ordered to he held, by a legislative body of a local agent) at an) meeting may by order or notice of continuance be continued or recontintied ro any subsequent meeting of the legislative body in the same manner and to the same extent set Forth in Section 34933 for the adjourn- ment of meetings; provided, that if the hearing is continued to a time less than 24 hours after the time specified in the order or notice of hearing, a copy of the order or notice of continuance of hearing shall he posted immediately following the meeting at which the order or declaration of continuance was adopted or made. 54956. A special meeting may he called at any time by the presiding officer of the legislative body of a local agency, or by a majority of the members of the legislative body, by delivering personally or by mail written notice to each member of the legislative body and to each local newspaper of general circulation, radio or television station requesting notice in writing. The notice shall be delivered personally or by mail and shall be received at least 24 hours before the time of the meeting as specified in the notice. The call and notice shall speciF% the time and place of the special meeting and the business to be transacted or discussed. No other business shall be considered at these meetings by the legislative body. The written notice may be dispenses( with as to any member who at or prior to the time the meeting convenes Files with the clerk or secretary of the legislative body a written waiver of notice. The waiver may be given by telegram. The Nvritten notice may also be dispensed with as to any member who is actually present at the meeting at the time it convenes. The call and notice shall be posted at least 24 hours prior to the special meeting in a location that is freely accessible to members of the public. 54956.5. In the case of an emergency situation invoking matters upon which prompt action is necessary due to the disruption or threatened disruption of public facilities, a legislative bod) may hold an emergency meeting without complying with either the 24-hour notice requirement or the 24-hour posting requirement of Section 3.4956 or both of the notice and posting requirements. For purposes of this section, "emergency situation" means any of the following: (a) `,fork stoppage or other activity which severely impairs public health, safen•, or both, as determined by a majorin of the members of the legislative body. (h) Crippling disaster which severeh impairs public health, safety, or both, as determined bv.a majority of the members of the legislative bod). However• each local newspaper of general circulation and radio or telesision station which Inas requested notice of special meetings pursuant to Section 34956 shall he notified by [tie presiding officer of the legisla 6%e bode, or designee thereof. one hour prior to the emergency meeting by telephone and all telephone numbers pro%icled in the most recent request of such newspaper or station for notification of special meetings shall be exhausted. In the event that telephone ser\ ices are not functioning, the notice requirements of this section shall be deemed waived, and the legislative body, or designee of the legislative body, shall notify those newspapers, radio stations, or television stations of the fact of the holding of the emergency meeting, the purpose of the meeting, and any action taken at the meeting as soon after the meeting as possible. Notwithstanding Section 34937, the legislative body shall not meet in closed session during a meeting called pursuant to this section. :all special meeting requirements, as prescribed in Section 5.4956 shall be appli- cable to a meeting called purswut to this section, with the excep tion of the 24 -hoar notice requirement. The minutes OF a meeting called pursuant to this section, a list of persons who the presiding officer of the legislative body, or designee of the legislative body, notified 33 continued hearings special meetings emergency meetings 34 1 California Government Code or attempted to notify, a copy of the rollcall vote, and any actions taken at the meeting shall be posted for a minimum of 10 days in a public place as soon after the meeting as possible. No fees except those 54956,6. No fees may be charged by the legislative body of a local agency for except as specifically authorized by this specifically authorized carrying out any provision of this chapter, chapter. closed sessions: license applicants 54956.7. Whenever a legislative body of a local agency determines that it is neces- determine whether an applicant for a license or license renewal, with criminal records nary to discuss and who has a criminal record, is sufficiently rehabilitated to obtain the license, the legislative body may hold a closed session with the applicant and the applicant's attorney, if any, for the purpose of holding the discussion and making the determi- nation. if the legislative body determines, as a result of the closed session, that the issuance or renewal of the license should be denied, the applicant shall be offered the opporntniry to withdraw the application. If the applicant withdraws the application, no record shall be kept of the discussions or decisions made at the closed session and all matters relating to the closed session shall be confidential. if the applicant does not withdraw the application, the legislative body shall take action at the public meeting during which the closed session is held or at its next public meeting denying the application for the license but all matters relating to the closed session are confidential and shall not be disclosed without the consent of the applicant, except in an action by an applicant who has been denied a license challenging the denial of the license, sessions: conference with 54956.8. Notwithstanding any other provision of this chapter, a legislative body of a its to the purchase, closed negotiator over real property local agency may hold a closed session with negotiator prior or lease of real property by or for the local agency to grant author- sale, exchange, ity to its negotiator regarding the price and terms of payment for the purchas:, sale, exchange, or lease. However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies the real property or real with properties which the negotiadons may concern and the person or persons whom its negotiator may negotiate. For the purpose of this section, the negotiator may be a member of the legislative body of the local agency. For purposes of this section, "lease" includes renewal or renegotiation of a lease. Nothing in this section shall preclude a local agency from holding a closed session for discussions regarding eminent domain proceedings pursuant to Section 54956.9. sessions: pending litigation 54956.9. Nothing in this chapter shall be construed to prevent a legislative bod} of its legal counsel, from holding a closed session to closed a local agency, based on advice of with, or receive advice from, its legal counsel regarding pending litigation confer when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation. For purposes of this chapter, all expressions of the lawyer -client privilege other This section is the than those provided in this section are hereby abrogated. of the law%er-client privilege for purposes of conducting exclusive expression closed -session meetings pursuant to this chapter. For purposes of this section, "litigation" includes any adjudicatory pro ceeding, i including eminent domain, before a court, administrative body exercising s adjudicatory authority, hearing officer, or arbitrator. For purposes of this section, litigation shall be considered pending when any of the following circumstances exist: California Government Code (a) Litigation, to which the local agency is a party, has been initiated formally. (b) (1) A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency. (2) Based on existing; facts and circumstances, the legislative body of the local agency is meeting only to decide whether a closed session is authorized pursuant to paragraph (1) of this subdivision. (3) For purposes of paragraphs (l) and (2), "existing facts and circumstances" Shall consist only of one of the following: (A) Facts and circumstances that might result in litigation against the local agency but which the local agency believes are not vet known to a potential plaintiff or plaintiffs, which facts and circumstances need not be disclosed. (B) Facts and circumstances, including, but not limited to, an accident, disaster, incident, or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which facts or circumstances shall be publicly stated on the agenda or announced. (C) The receipt of a claim pursuant to the Tort Claims Act or some other written communication from a potential plaintiff threatening litigation, which claim or communication shall be available for public inspection pursuant to Section 51937.5. (D) A statement made by a person in an open and public meeting threatening litigation on a specific matter within the responsibility of the legislative body. (E) A statement threatening litigation made by a person outside an open and public meeting on a specific matter within the responsibility of the legislative body so long as the official or employee of the local agency receiving knowledge of the threat makes a contemporaneous or other record of the statement prior to the meeting, which record shall be available for public inspection pursuant to Section 54957.5. The records so created need not identify the alleged victim of unlawful or tortious sexual conduct or anyone making the threat on their behalf, or identifv a public employee who is the alleged perpetrator of any unlawful or tortious conduct upon which a threat of litigation is based, unless the identity of the person has been publicl} disclosed. (F) Nothing in this section shall require disclosure of written communications that are privileged and not subject to disclosure pursuant to the California Public Records .act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1). (c) Based on existing facts and circumstances, the legislative body of the local aJencv has decided to initiate or is deciding whether to initiate litigation. Prior to holding a closed session pursuant to this section, the legislative body of the local agency shall state on the agenda or publicly announce the subdivision of this section that authorizes the closed session. If the session is closed pursuant to subdivision (a), the body shall state the title of or otherwise specifically identify the . litigation to he discussed, unless the body states that to do so would jeopardize the agency's ability to effectuate serice of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its adwantage. A local agency shall be considered to be a 'parry" or to have a "significant exposure to litigation" if an officer or employee of the local agency is a party or has signifi- cant exposure to litigation concerning prior or prospective activities or alleged activities during the course and scope of that office or employment, including litigation in which it is an issue whether an activity is outside the course and scope of the office or emplo}ment. 35 --------------- litigation formally initiated significant exposure to litigation meeting to decide if closed meeting is authorized initiating litigation 36 1 California Government Code public reports on closed 154957.1. (a) The legislative body of any local agency shall publish report am action session actions, votes taken in closed session and the vote or abstention of eyerr member present thereon, as follows: real estate negotiations (1) Approval of an agreement concluding real estate negotiations pursuant to Section 5.1956.8 shall be reported after the agreement is final, as specified below: (A) if its own approval renders the agreement final, the body shall report that approval and the substance of the agreement in open session at the public meeting daring which the closed session is held. 54956.95. (a) Nothing in this chapter shall be construed to prekent ajoint powers closed session: claims against agency formed pursuant to Article 1 (commencing with Section 6500) of Chapter 5 joint powers agencies of Division 7 of Title 1, for purposes of insurance pooling, or a local agency member of the joint powers agency, from holding a closed session to discuss a claim for the payment of tort liability losses, public liability losses, or workers' compensation liability incurred by the joint powers agency or a local agency member of the joint powers agency. (b) frothing in this chapter shall be construed to prevent the Local Agency Self- insurance Authority formed pursuant to Chapter 5.5 (commencing with Section 6599.01) of Division 7 of Title I, or a local agency member of the authority, from holding a closed session to discuss a claim for the payment of tort liability losses, public liability losses, or workers' compensation liability incurred by the authority or a local agency member of the authcriq. (c) 'nothing in this section shall be construed to affect Section 54956.9 with respect to any other local agency. closed sessions: threats to public 54957. Nothing contained in this chapter shall be construed to prevent the body of a local agency from holding closed sessions with the ?.ttorney buildings or to public access legislative General, district attorney, sheriff, or chief of police, or their respective deputies, on maters posing a threw[ to the security Of public buildings or a threat to the public's right of access to public services or public facilities, or from holding closed sessions during a regular or special meeting to consider the appointment, employment, personnel matters evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session. As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employes shay. be given wTiuen notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken b}' the legislative body against the employee based on the specific complaints or charMes in the closed session shall be null and void. The legislative body also may exclude from the public or closed meeting. during the examination of a witness, any or all other witnesses in the matter being investigated by the.legislatiye body. For the purposes of this section, the term "employee" shall include an officer or an independent contractor w•ho functions as an officer or an employee but sliall npt include any elected official, member of a legislative body or other independent contractors. Nothing in this section shall limit local officials' ability to huld closed session meetings pursuant to Sections 1461, 32106, and 32135 of the Health aild Safety Code or Sections 37606 and 37624.3 of the Government Code. Closed sessions held pursuant to this section shall not include discussion or action on except for a reduction of compensation that results from proposed compensation the imposition oEdiscipline. public reports on closed 154957.1. (a) The legislative body of any local agency shall publish report am action session actions, votes taken in closed session and the vote or abstention of eyerr member present thereon, as follows: real estate negotiations (1) Approval of an agreement concluding real estate negotiations pursuant to Section 5.1956.8 shall be reported after the agreement is final, as specified below: (A) if its own approval renders the agreement final, the body shall report that approval and the substance of the agreement in open session at the public meeting daring which the closed session is held. California Government Code (B) If final approval rests with the other party to the negotiations, the local agencv shall disclose the fact of that, approval and Elie substance of the agreement upon inquiry by any person, as soon as the other party or its agent has informed the local agency of its app royal. (2) Approval given to its legal counsel to defend, or seek or refrain from seeking appellate review or relief, or to enter as an amicus curiae in am• form of litigation as the reside of a consultation under Section 34956.9 shall be reported in open session at the public meeting cittring which the closed session is held. The report shall identify, if known, the adverse parn- or parties and the substance OF the litigation. In the case of approval given to initiate or intervene in an action, the announcement need not identif}' the action, the defendants, or other particulars, but shall specify that the direction to initiate or intervene in an action has been given -and that the action, the defendants, and the other particulars shall, once formally commenced, be disclosed to any person upon inquiry, unless to do so would jeopardize the agency's ability to effectuate serice of process on one or more unserved parties, or that to do so would jeoparclize its ability ro conclude existing settlement negotiations to its advantage. (3) Approval given to its legal counsel of a settlement of pending litigation, as defined in Section 34936.9, at any stage prior to or during a judicial or quasi- judicial proceeding shall be reported after the settlement is final, as specified below: (A) If the legislative body accepts a settlement offer signed by the opposing party, the body shall report its acceptance and identify the substance of the agreement in open session at the public meeting daring which the closed session is held. (B) If final approval rests with some other party to the litigation or with the court, then as soon as the settlement becomes final, and upon inquiry by any person, the local agency shall disclose the fact of that approval, and iclentif} the substance of the agreement. (4) Disposition reached as to claims discussed in closed session pursuant to Section 34956.95 shall be reported as soon as reached in a manner that identifies the name of the claimant, the mune of the local agency claimed against, the substance of the claim, and any monetary amount approved for payment and agreed upon by the claimant. (5) .action taken to appoint, emplo}, dismiss, accept the resignation of, or other- wise affect the employment status of a public emplo}ee in closed session pursuant to Section 5.4937 shall he reported at the public meeting during which the closed session is held. Any report required by this paragraph shall identifi' the title of the position. The general requirement of this paragraph nonwithstanding, the report of a dismissal or of (lie nonrenewal of an employment contract shall be deferred until the fiat public meeting following the exhaustion of administrative remedies, if any. (6) .-Approval of an agreement concluding labor negotiations with represented emplo.ees pursuant to Section 5.4937.6 shall be reported after the agreement is final and has been accepted or ratified by the other parn•. The report shall identif< the item approved and the other pard or parties to the negotiation. (b) Reports that are required to be made pursuant to this section may be made orally or in wri(ing. The legislative bod) shall provide to any person who has submitted a written request to the legislative body within 24 hours of the posting of the agenda, or to any person who has made a standing request for all documenta- tion as part of a request for notice of meetings pursuant to Section 54954.1 or 5.4956, if Elle requester is present at the time the closed session ends, copies of an,, contracts, settlement agreements, or other documents that were finally approyecl or adopted in the closed session. If the action taken results in one or more substantive amendments to the related doCtUnents requiring retyping, the docit- 37 pending litigation joint powers authority claims personnel actions labor negotiations opies of closed session documents 38 1 California Government Code ments need not be released until the retyping is completed during normal business hours, prodded that the presiding officer of the legislative body or his or her designee orally summarizes the substance of the amendments for the benefit of the document requester or any other person present and requesting the information. (c) The documentation referred to in paragraph (b) shall be available to any person on the next business day following the meeting in which the action referred to is taken or, in the case of substantial amendments, when anv necessary renping is complete. (d) Nothing in this section shall be construed to require that the legislative body approve actions not otherwise subject to legislative body approval. (e) No action for injury to a reputational, liberty, or other personal interest may be commenced by or on behalf of any employee or former employee with respect to whom a disclosure is made by a legislative body in an effort to comply with this section. minute book 54957.2. (a) The legislative body of a local agency may, by ordinance or resolution, closed session designate a clerk or other officer or employee of the local agency who shall then attend each closed session of the legislative body and keep and enter in a minute book a record of topics discussed and decisions made at the meeting. The minute book made pursuant to this section is not a public record subject to inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with writings distributed to a majority Section 6230) of Division 7 of Title 1), and shall be kept confidential. The minute of the legislative body or, if a violation of of a body are public records book shall be available only to members this chapter is alleged to have occurred at a closed session, to a court of general jurisdiction wherein the local agency lies. Such minute book may, but need not, consist of a recording of the closed session. (b) An elected legislative body of a local agency may require that each legislative body all or a majority of whose members are appointed by or under the authori;v of the elected legislative body keep a minute book as prescribed under subdivision (a). closed session minute book 54957.5. (a) Nonvithstanding Section 6233 or any other provisions of law, agendas distributed to all, or a majority of of public meetings and any other writings, when all, of the members of a legislative body of a local agency by any person in connec- tion with a matter subject to discussion or consideration at a public meeting of the body, are public records under the California Public Records Act (Chapter 3.6 (commencing with Section 6230) of Division 7 of Title 1), and shall be made available upon request without delay. However, this section shall not include any writing exempt from public disclosure under Section 6233.3, 6234, or 6234.7. (b) Writings which are public records under subdivision (a) and which are distributed during a public meeting shall be made available for public inspection at the meeting if prepared by the local agency or a member of its legislative bode, ur after the meeting if prepared by some other person. (c) Nothing in this chapter shall be construed to prevent the legislative body of a local agency from charging a fee or deposit for a copy of a public record pursuant to Section 6237. (d) This section shall not be construed to limit or delay the public's right to inspect anv record required to be disclosed under the require ments of the California Public Records .pct (Chapter 3.3 (commencing with Section 6230) of Division 7 of Title 1). Nothing in this chapter shall be construed to require a or anv other paid legislative body of a local agency to place any paid advertisement notice in any publication. California Government Code 54957.6. (a) Notwithstanding any other provision of law, a legislative body of a local agency may hold closed sessions with the local agency's designated representatives regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees, and, for represented employees, any other matter within the statutorily -provided scope of representa- tion. Closed sessions of a legislative body of a local agency, as permitted in this section, shall be for the purpose of reviewing its position and instructing the local agency's designated representatives. Closed sessions, as permitted in this section, may take place prior to and during consultations and discussions with representa- tives of employee organizations and unrepresented employees. Closed sessions with the local agency's designated representative regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits may include discussion of an agency's available funds and funding priorities, but only insofar as these discussions relate to providing instructions to the local agency's designated representative. Closed sessions held pursuant to this section shall not include final action on the proposed compensation of one or more unrepresented employees. For the purposes enumerated in this section, a legislative body of a local agency may also meet with a state conciliator vvho has intervened in the proceedings. (b) For the purposes of this section, the term "employee" shall include an officer or an independent contractor who functions as an officer or an employee, but shall not include anv elected official, member of a legislative body, or other indepen- dent contractors. 54957.7. (a) Prior to holding any closed session, the legislative body of the local agency shall disclose, in an open meeting, the item or items to be discussed in the closed session. The disclosure may take the form of a reference to the item or items as they are listed by number or letter on the agenda. En the closed session, the legislative bodv may consider only those matters covered in its statement. Nothing in this section shall require or authorize a disclosure of information prohibited by state or federal law. (b) After anv closed session, the legislative body shall reconvene into open session prior to adjournment and shall make any disclosures required by Section 54937.1 of action taken in the closed session. (c) The announcements required to be made in open session pursuant to this section may be made at the location announced in the agenda for the closed session, as long as the public is allowed to be present at that location for the purpose of hearing the announcements. 54957,8. Nothing contained in this chapter shall be construed to prevent the legislative body of a multijurisdictional drug law enforcement agency, or an advisor- body of a multijurisdictional drug law enforcement agency, from holding closed sessions to clisc1.155 the case records of any ongoing criminal investigation of the multijurisdictional drug law enforcement agency or of any party to the joint powers agreement, to hear testimony from persons involved in the investigation, and to discuss courses of actioc, in particular cases, "\lultijurisdictional chug lave enforcement agency," for purposes of this section, means ajoint powers entity formed pursuant to A-rticle 1 (com mencing with Section 6300) of Chapter 5 of Division 7 of Title 1, which provides drug law enforcement servicts for the parties to the joint powers agreement. The Legislature finds and declares that this section is within the public interest, in that its provisions are necessan to prevent the impairment of ongoing law enforce- ment investigations, to protect witnesses and informants, and to permit the discussion of effective courses of action in particular cases. 39 closed sessions: meeting with representatives on labor negotiations advance announcement of closed session items closed sessions: multijurisdictional drug law enforcement agency 40 willful interruptions of meetings provisions apply notwithstanding conflicts of law misdemeanor violations of the Act civil actions to prevent violations 7 i California Government Code 54957.9. In the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupt- ing the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue in session. Only matters appearing on the agenda may be considered in such a session. Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section. Nothing in this section shall prohibit the legislative body from establishing a procedure for readmitting an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting. 54958. The provisions of this chapter shall apply to the legislative body of ever) local agency notwithstanding the conflicting provisions of am• other state law. 54959. Each member of a legislative body who attends a meeting of that legislativ e body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this chapter, is gulln of a misdemeanor. 54960. (a) The district attorney or any interested person may commence an action by mandamus, injunction or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicabilin of this chapter to tion of the legislative bodyise , or to determine whether actions or threatened future ac any rule or action by the legislative body to penalize or otherwdiscourage the expression of one or more of its members is valid or invalid under the laws of this state or of the United States, or to compel the legislative body to tape record its -closed sessions as hereinafter provided. (b) The court in its discretion mac, upon a judgment of a violation of Section 54936.7, 54956.8, 54956.9, 54956.95, 54957, or 54957.6, order the legislative bod)' to tape record its closed sessions and preserve the tape recordings for the period and under the terms of security and confidentiality the court deems appropriate. (c) (1) Each recording so kept shall be immediately labeled with the date of the closed session recorded and the title of the clerk or other officer who shall be custodian of the recording. (2) The tapes shall be subject to the following discovery procedures: ( �) In an) case in which discovery or disclosure of the tape is sought b)' either the Section 51959, 51960, district attorney or the plaintiff in a civil action pursuant to or 54960.1 alleging that a violation of this chapter has occurred in a closed session which has been recorded pursuant to this section, the pare seeking discover or disclosure shall file a written notice of motion with the appropriate court with custodand control of the tape notice to the governmental agency which has y recording. The notice shall be given pursuant to subdivision (b) of Section 1003 of the Code of Civil Procedure. (B) The notice shall include, in addition to the items required by Section 1010 of the Code of Civil Procedure, all of the following: (i) Identification of the proceeding in which discovery or disclosure is sought. the party seeking discover or disclosure, the date and time of the meeutig recorded, and the governmental agency which has custod) and control of the recording. (ii) .moi affidavit which contains specific facts indicating that a violation of the act occurred in the closed session. California Government Code (3) if the court, following a review of the motion, finds that there is good cause to believe that a violation has occurred, the court may review, in camera, the record• ing of that portion of the closed session alleged to have violated the act. (4) if, following the in camera review, the court concludes that disclosure of a portion of the recording Would be likely io materially assist in the resolution of Elie litigation alleging violation of this chapter, the court shall, in its discretion, make a certified transcript of the portion of the recording a public exhibit in the proceeding. (5) Nothing in this section shall permit discovery of communications which are protected by the auorne,y-client privilege. 54960.1. (a) The district attorney or ane interested person may commence an action by mandamus or injunction for the purpose of obtaining a judicial determi- nation that an action taken by a legislative body of a local agency in violation of Section 54933, 54954.2, 3495.1.6, 51934.6, or 54956 is null and void under this section. Nothing in this chapter shall be construed to prevent a legislative body from curing or correcting an action challenged pursuant to this section. (b) Prior to 'any action being commenced pursuant to subdivision (a), the district attorney or interested person shall make a demand of the legislative body to cure or correct the action alleged to have been taken in %iolation of Section 34953, 54954.2, 54954.5, 54954.6, or 54956. The demand shall be in writing and clearly describe the challenged action of the legislative body and nature of the alleged violation. (c) (1) The written demand shall be made within 90 days from the date the action was taken unless the action was taken in an open session buE in %iolation of Section 54954.2, in which case the written demand shall be made within 30 days from the date the action was taken. (2) Within 30 days of receipt of the demand, the legislative body shall cure or. correct the challenged action and inform the demanding part% in writing of its actions to care or correct or inform the demanding party in writing of its decision not to cure or correct the challenged action. (3) If the legislative body takes no action within the 30 -day period, the inaction shall be deemed a decision noE to cure or correct the challenged action, and the 13 -clay period to commence the action described in subdivision (a) shall com- mence to run the clay after the 30 -day period to cure or correct expires. (4) Within 15 days of receipt of the written notice of the legislative body's decision to cure or correct, or not to cure or correct, or within 15 days of the expiration of the 30 -day period to cure or correct. whichever is earlier, the demanding para - shall be required to commence the action pursuant to subdi%ision (a) or thereafter be barred from commencing the action. (d) .fin action taken that is alleged to have been taken in violation of Section 54953. 54954.2, 54954.3. 54954.6, or 34956 shall not be determined to be null and void if any of the following conditions exist: (1) The action taken was in substantial compliance with Sections 54933, 54954.2, 34954.3. 54954.6, and 34956. (2) The action taken was in connection with the sale or issuance of notes, bonds, or other evidences of indebtedness or any contract. instrument, or agreement thereto. (3) The action taken gave rise to a contractual obligation, including a contract let by competitive bid other than compensation for ser%ices in the form of salary or fees for professional services, upon which a party has, in good faith and without notice of a challenge to the yalidin• of the action, detrimentally relied. 41 action to invalidate 42 1 California Government Code (4) The action taken was in connection with the collection of any tax. (5) Any person, city, city and county, county, district, or any agency or subdivision of the state alleging noncompliance with subdivision (a) of Section 54954.2, Section 54936, or Section 54936.5, because of any defect, error, irregularity, or omission in the notice given pursuant to those provisions, had actual notice of the item of business at least 72 hours prior to the meeting at which the action was taken, if the meeting was noticed pursuant to Section 54954.2, or 24 hours prior to the meeting at which the action was taken if the meeting was noticed pursuant to Section 5.4936, or prior to the meeting at which the action %vas taken if the meeting is held pursuant to Section 54956.5. (e) During any action seeking ajudicial determination purstiant to subdivision (a) if the court determines, pursuant to a showing by the legislative body that an action alleged to have been taken in violation of Section 34933, 54954.2, 5 4934.3, 34934.6, or 54956 has been cared or corrected by a subsequent action of the legislative body, the action filed pursuant to subdivision (a) shall be dismissed with prejudice. (f) The fact that a legislative body takes a subsequent action to cure or correct an action taken pursuant to this section shall not be construed or admissible as evidence of a violation of this chapter. court may award attorney fees 54960.5. A court may award court costs and reasonable attorney fees to the plaintiff in an action brought pursuant to Section 54960 or 54960.1 where it is found that a legislative body of the local agency has violated this chapter. The costs and fees shall be paid by the local agency and shall not become a personal liability of any public officer or employee of the local agency. A court may award court costs and reasonable attorney fees to a defendant in an•y action brought pursuant to Section 54960 or 54960.1 where the defendant has pre=vailed in a final determination of such action and the court funds that the acd('n was clearly frivolous and totally lacking in merit. 54961. (a) No legislative body of a local agency shall conduct any meeting in any meeting sites must be free of discrimination and accessible facility that prohibits the admittance of any person, or persons, on the basis of race, to handicapped religious creed, color, national origin, ancestry, or sex, or which is inaccessible to disabled persons, or where members of the public may not be present without making a payment or purchase. This section shall apply to every local agency as defined in Section 54951. (b) No notice, agenda, announcement, or report required under this chapter reed identify any victim or alleged victim of tortious sexual conduct or child abuse unless the identity of the person has been publicly disclosed. 54962. Except as expressly authorized by this chapter, or by, Sections 1461, 32 106. no closed meetings except as expressly authorized and 32155 of the Health and Safen Code or Sections 37606 and 37624.3 of the Government Code as they apply to hospitals, or by any provision of the Education Code pertaining to school districts and community college districts, no closed session may be held by any legislative bod% of any local agency. The Brown Act, 1998 Amendments (b) The city, district, or executive officer of a local agency formation commission, forwarding the statement to the tax or assessment levying authority for filing pursuant to Section 54900, shall accompany c the statement with the necessary fee for transmittal to the board However newly created city or district, no fee shall be required until the time that the city or distth rict repe visits first revenues. (Amended by Stats. 1997, c. 940 (S.B.1105), § 2.) Chapter 9 MEETINGS § 54952.2. Meeting; prohibited devices for obtaining collective concurrence; exclusions from chapter (a) As used in this chapter, "meeting" includes any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains. (b) Except as authorized pursuant to Section 54953, any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action to betathe on an item by the members of legislative body is prohibited. (c) Nothing in this section shall impose the requirements of this chapter upon any of the following: (1) Individual contacts or conversations between a member of a legislative body and any other person. (2) The attendance of a majority of the members of a legislative body at a conference or similar gathering open to the public that involves a discussion of issues of general interest to the public or to Public agencies of the type represented by the legislative body, provided that a majority of the members do not discuss among themselves, other, than as part of the scheduled program, business of a specified nature that is within the subject matter jurisdiction of the local agency. Nothing in this paragraph is intended to allow members of the public free admission to a conference orsimilar gathering at which the organizers have required other participants or registrants to pay fees or charges as a condition of attendance. (3) The attendance of a majority of the members of a legislative body at an open and publicized meeting organized to address a topic of local community concern by a person or organization other than the local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency. (4) The attendance of a majority of the members of a legislative body at an open and noticed meeting of another body of the local agency, or at an open and noticed meeting of a legislative body of another al agen loccy, provided that a majori, 7of the members do not. discuss among themes selv, other than as Part of the scheduled meeting, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency. (5) The attendance of a majority of the members of a legislative body at a purely social or ceremonial occasion, provided that a majority of the members do not discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency. (G) The attendance of a ma' of orit of the members of a legislative bodyat an open and noticed meeting a standing committee of that hndu nrn ri i� •A �L_ __ uie sianamg committee attend only observers (Amended by Stats.1997, c. 25.3 (S.B.138), § 1.) are not § 54953. Meetings to be open and public; attendance; teleconferencing Text of section last annevni by Stats. 1997, c. 253 (S. B.138), § ? (a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise pro,�Ided in this chapter. (b)(1) Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall complti with all re uirements of this chapter and all otherwise a hcable provisions of law relating to a specific type of meeting or proceeding Additions or changes indicated by underllne; deletions by asterisks 2 GOVERNMENT CODE § 549-54 Teleconferencing, (3) If the legislative body of a local agency elects to use * * * teleconferencing, it shall post agendas at all'* * * teleconference locations and * * * conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body cf a local agency. Each teleconference location, shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. The agenda shall .,,.—;A. nn nnnnrt.,mlty for members of the public to address the legislative body directly pursuant to ■ * * For the purposes of 11 means a. meeting of individuals in different (c) No legislative body shall take action by secret ballot, whether preliminary or final. (Amended by Stats.199 c. 253 (S.B.138), § 2.) For text of section added by Stats.1988, c. 399, § 2, see Government Code § 54953, in main volume. 54954. Time and place of regular meetings; special meetings; emergencies (a) Each legislative body of a local agency, except for advisory committees and standing committees, shall provide, by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body, the time and place for holding regular meetings. (b) Regular and special meetings of the legislative body shall be held within the boundaries of the territory over which the local agency exercises jurisdiction, except to do any of the following: (1) Comply with state or federal law or court order, or attend a judicial or administrative proceeding to which the local agency is a party. (2) Inspect real or personal property which cannot be conveniently brought within the boundaries of the territory over which the local agency exercises jurisdiction provided that the topic of the meeting is limited to items directly related to the real or personal property. (3) Participate in meetings or discussions of multiagency significance that are outside the boundaries of a local agency's jurisdiction. However, any meeting or discussion held pursuant to this subdi,nsion shall take place within the jurisdiction of one of the participating local agencies and be noticed by all participating agencies as provided for in this chapter. (4) Meet in the closest meeting facility if the local agency has no meeting facility within the boundaries of the territory over which the local agency exercises jurisdiction, or at the principal office of the local agency if that office is located outside the territory over which the agency exercises jurisdiction. (5) Meet outside their immediate jurisdiction with elected or appointed officials of the United States or the State of California when a local meeting would be impractical, solely to discuss a legislative or regulatory issue affecting the local agency and over which the federal or state officials have jurisdiction. (6) Meet outside their immediate jurisdiction if the meeting takes place in or nearby a facility owned by the agency, provided that the topic of the meeting is limited to items directly related to the facility. (7) Visit the office of the local agency's legal counsel for a closed session on pending litigation held pursuant to Section 54956.9, when to do so would reduce legal fees or costs. (c) Meetings of the governing board of a school district shall be held within the district except under the circumstances enumerated in subdivision (b), or to do any of the following: (1) Attend a conference on nonadversarial collective bargaining techniques. (2) Interview members of the public residing in another district with reference to the trustees' potential employment of the superintendent of that district. (3). Interview a potential employee from another district. (d) Meetings of a joint powers authority shall occur within the territory of at least one of its member agencies, or as provided in subdivision (b). However, a joint powers authority which has members throughout the state may meet at any facility in the state which complies with the requirements of Section 54961. (e) If, by reason of fire, flood, earthquake, or other emergency, it shall be unsafe to meet in the place designated, the meetings shall be held for the duration of the emergency at the place designated by the presiding officer of the legislative body or his or her designee in a notice to the local media that have Additions or changes indicated by underline; deletions by asterisks 3 requested notice pursuant to Section 54956, by the most rapid means tim e. of communication available at the (Amended by Stats.1997, c. 253 (S.B.138), § 3.) 54954.1. Mailed notice to persons who filed written request; requests; fee time; duration and renewal of * Any Ders-C-L-May request that a coo of the a endo er a co v of all the documents constitutin the akenda packet of any meeting of a Iegislative bod Coon receipt of the wntten reo the le lative body ** * be mailed * * * w that person rr,ate:ials to be mailed at the time the a enda is osted ursuant toor s ctionpa49541?e shaff cande54956 or uthe rs d distribution to all, or a m 'orit of all, of the members of a le 'slative bod ,whichever occurs first. Anv request for * *mailed copies of agendas or agenda ackets shall be valid for which .it is filed and must be renewed followzno the calendar year in ach badv ma establish a fee for maEin the a end e daanacket,lwhi h fee shall not exceed the cost of rovidrn the service Failure of * * * Y The legislative �— g cons re`i person to receive the packet pursuant to this section shall not constrtute ounds for * * * • agenda or legislative body, * * taken at the meetin for w hi * * invalidation of the actrons of the rer_eived. — which the agenda or agenda na�ket was not (.Amended by Stats.1997, c. 253 (S.B.138), § 4.) § 54954.2. Agenda; posting; action on other matters (a) At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an itern generally need not exceed 20 words. The agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public. No action or discussion shall be undertaken on any item not appearing on the posted agenda, except that: members of a legislative body or its staff may briefly respond t.o statements made or questions posed by .persons exercising their public testimony rights under Section 54954.3. In addition, on their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities. Furthermore, a member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may provide a reference to staff or other resources for factual information, request staff to report back to the body at a subsequent meeting concerning any matter, or take action to direct staff to place a matter of business on a ftzture agenda, (b) Notwithstanding subdivision (a), the legislative body may take action on items of business not appearing on the posted agenda under any of the conditions stated below. Prior to discussing any item Pursuant to this subdivision, the legislative body shall publicly identify the item. (1) Upon a determination by a majority vote of the legislative body that, an emergency situation exists, as defined in Section 54956.5. (2) Upon a determination by a two-thirds vote of the mernbers of the legislative body meeting, or, if less than two-thirds of the members are present,mous present at the prese=nt, that there is a need to take immediate action and thattheneed for actioncameof on the attention Of the local agency subsequent to the agenda being posted as specified in subdivision (a). (3) The item was posted pursuant to subdivision (a) for a prior meeting of the legislative body occurring not more than five calendar days prior to the date action is taken on the item, and at the prior meeting the item was continued to the meeting at which action is being taken. (Amended by Stats -1997, c. 253 (S.B.138), § 5.) 549'A.6. New or increased taxes or assessments; public meetings and public hearings; joint notice requirements (a)(]) Before adopting any new or increased general tax or an y new or legislative body of a local agency shall conduct at least one public meeting atwhich increased alsofficialstshall allow public testimony regardingthe assessment in addition to the noticed publiP hearing atosed new owhichrthe e legislative el body or new or increased increase the general tax or assessment. g' y Proposes to enact or For purposes of this section, the term "new or increased assessment" does riot include any of the following; Additions or changes indicated by underline; deletions by asterisks 4 § 54954.6 GOVERNMENT CODE (A) A fee that does not exceed the reasonable cost of providing the services, facilities, or regulatory activity for which the fee is charged. har)eArate, orchargeto conform to he requirements ofcharg, rate, or charge, unless a lthis section.principal act requires the service c revious year. (C)) An ongoing annual assessment if it is imposed at the same or lower amount as any p (D) An assessment that does not exceed an assessment formula or range of a (2) of subdivisiossments previously (1) specified in the notice given `to the public pursuant to subparagraph (G) of paragraph M . * and that was previously adopted by the agency or approved by the voters in the area where the assessment is imposed. (E) Standby or immediate availability charges. (2) The legislative body shall provide at least 45 days' public notice of the public hearing at which the legislative body proposes to enact or increase the general tar or assessment. The legislative body shall provide notice for the public meeting at the same time and in the same document as the notice for the public hearing, but the meeting shall occur prior to the hearing. (b)(1) The joint notice of both the public meeting and the public hearing required by subdivision (a) with respect to a proposal for a new or increased general tax shall be accomplished by placing a display advertisement of at least one eighth page in a newspaper of general circulation for three weeks pursuant to Section advertisement and ea a one fir-ei lass mailing to those interested parties who have filed a written request with the local agency for mailed notice of public meetings or hearings on new or increased general taxes. meeting pursuant to subdivision (a) shall take place no earlier than 10 days after the first The public publication m the joint notice pursuant to this subdivision. The public hearing shall take place no earlier nt to this subdivision. Notwithstanding paragraph (2) of than seven oat's after the public meeting pursua subdivision (a), the joint notice need of include isiontice of epublic place. The public hearing p (a) shalltake place meeting, onh earlier than 45 ciaysa ter the first publication of the joint notice pursuant to this subdivision. Any written request for mailed notices shall be effective for one year from the date on which it is filed unless a renewal request is filed. Renewal requests for notices notices re 41 -ii I of each year. The legislative o dy may establish a reasonable annual frsendng d on or baed on the estimated cost of he service. (2) The notice required by paragraph (1) of this subdivision shall include, but not be limited to, the following: (A) The amount or rate of the tax. If the tax is proposed to be increased from any previous year, the joint notice shall separately state both the existing tax rate and the proposed tar rate increase. (B) The activity to be taxed. (C) The estimated amount of revenue to be raised by the tax annually. (D) The method and frequency for collecting the tax. (E) The dates, times, and locations of the public meeting and hearing described in subdivision (a). (F) The phone number and address of an individual, office, or organization that interested persons may contact to receive additional information about the tax. (c)(1) The joint.notice of both the public meeting and the public hearing requierty red by accomplished sh d with respect to a proposal for e aid, inrtherUn tedeased aStates mail and ssessment on s hall)ropbe deemed given when so through a mailing, postage p p deposited. The public meeting pursuant to subdivision (a) shall take place no earlier than t0 days after the joint mailing pursuant to this uantsto this subdivision. The en e1Gpe ort eshall take ucoveroof the emailing r than sshall days after the public meeting p in include the name of the local agency and the return address of the proposed This be sub subject toetheanewe or at least 10 -point type and shall be given to all property owners propn the increased assessment ris smelt gob or the State Board of Equalizatioto those persons whose nassessment es and rrolleas the case may last equalized county be. (2) The joint notice required by paragraph (1) of this subdivision shall include, but not be limited to, the following: t per parcel. if the (A) The estimated amount joint h ass enotice shall separately state both the amountsessment s o proposed increased the exiting assessment from any previous year, and the proposed assessment increase. (B) A general description of the purpose or improvements that the assessment will fund. Additions or changes indicated by underline; deletions by asterisks u v � uxo� r.rtdi l\ Y I�VLL' (C) The address to which property owners may mail a protest against the assessment. (D) The phone number and address of an individual, office, or organization that interested persons may contact to receive additional information about the assessment. (E) A statement that a majority protest will cause the assessment to be abandoned if the assessment act used to levy the assessment so provides. Notice shall also state the percentage of protests required to trigger an election, if applicable. (F) The dates, times, and locations of the public meeting and hearing described in subdivision (a), (G) A proposed assessment formula or range as described in subparagraph (D) of paragraph (1) of subdivision (a) if applicable and that is noticed pursuant to this section. (3) Notwithstanding paragraph (1), in the case of an assessment that is proposed exclusively for cmeration and maintenance expenses imposed throughout the entire local agency, or exclusively for operation and maintenance assessments proposed to be levied on 50,000 parcels or more, notice may be provided pursuant to this subdivision or pursuant to paragraph (1) of subdivision (b) and shall include the estimated amount of the assessment of various types, amounts, or uses of property and the information required by subparagraphs (B) to (G), inclusive, of paragraph (2) of subdivision (c). (4) Notwithstanding paragraph (1), in the case of an assessment proposed to be levied pursuant to Part 2 (commencing with Section 22500) of Division 2 of the Streets and Highways Code by a regional park district, regional park and open -space district, or regional open -space district formed pursuant to Article 3 (commencing Mth Section 5500) of Chapter 3 of Division 5 of, or pursuant to Division 26 (commencing with Section 35100) of, the Public Resources Code, notice may be provided pursuant to paragraph (1) of subdivision (b). (d) The notice requirements imposed by this section shall be construed as additional to, and not to supersede, existing provisions of law, and shall be applied concurrently with the existing provisions so as to not delay or prolong the governmental decisionmaking process. (e) This section shall not apply to any new or increased general tax or any new or increased assessment that requires an election of either of the following: (1) The property owners subject to the assessment. (2) The voters within the local agency imposing the tax or assessment. ! (f) Nothing in this section shall prohibit a local agency from holding a consolidated meeting or hearing at which the legislative body discusses multiple tax or assessment proposals. (g) The local agency may recover the reasonable costs of public meetings, required by this section from the proceeds of the tax or assessment. e pcosts recovered and notice d for these Purposes, whether recovered pursuant to this subdivision or any other provision of law, shall not exceed the reasonable costs of the public meetings, public hearings, and notice. (lI An new or increased assessment that is sub'ect to the notice and hearin provisions of Article XIII C or ?C1I1 D of the California Constitution is not sub'ect to the notice and hearin re uirements of this section. (Amended by Stats.1997, c. 38 (S.B.919), § 6, eff. July 1, 1997.) 1997 Legislation Historical and Statutory Notes For title of act, severability, construction of act, and urgency provisions of Stats.1997, c. 38, see Historical and Statutory Notes under Government Code § 53750. § 54956. Special meetings; call; notice A special meeting may be called at any time by the presiding officer of the legislative body of a local agency, or by a majority of the members of the legislative body, by delivering * * * written notice to each member of the legislative body and to each local newspaper of general circulation and radio or television station requesting notice in writing. The notice shall be delivered personally or by * * * any other means and shall be received at least 24 hours before the time of the meeting as specified in tie` notice call and notice shall specify the time and place of the special meeting and the business to be i transacted or discussed. No other business shall be considered at these meetings by the legislative body. The written notice may be dispensed with as to any member who at or prior to the time the meeting convenes files with the clerk or secretary of the legislative body a written waiver of notice. The waiver may be given by telegram. The written notice may also be dispensed with as to any member who is actually present at the meeting at the time it convenes. Additions or changes indicated by underline; deletions by asterisks i 6 GOVERNMENT CODE §§ 55530 to 55570. Repealed The call and notice shall be posted at least 24 hours prior to the special meeting in a location that is freely accessible to members of the public. (Amended by Stats.1997, c. 253 (S.B.138), § 6.) § 54956.9. Pending litigation; closed session; lawyer -client privilege; notice; memorandum Notes of Decisions Ripeness doctrine 10 10. 'Ripeness doctrine Complaint of city residents and citizens group against city alleged enstence of actual controversy between par- ties for which declaratory relief was available and, thus, ripeness requirement was met in action brought by resi- dents and group, alleging continuing violations of Brown Act open meeting provisions and public meeting require- ments of city charter with respect to decisions to reduce electric utility s obligation under its franchise agreement with city to devote spending to placing overhead power lines underground, and seeking declaratory relief; there was controversy between parties over whether city council met requirements of Act and charter in reducing utility's undergrounding obligation, public interest in resolving controversy was substantial, and allegations suggested that citizens and group would have difficulty in preventing future violations in absence of declaratory relief. Califor- nia Alliance for Utilities Safety and Education v. City of San Diego (App. 4 Dist. 1997) 65 Cal.Rptr.2d 833, 56 Cal.App.4th 1024, 57 Cal.AppAth 67C, modified. § 54960. Actions to stop or prevent violations of meeting provisions; applicability of meeting provisions; validity of rules or actions on recording closed sessions "dotes of Decisions Ripeness doctrine 6 6. Ripeness doctrine Ripeness doctrine did not require that city residents and citizens group allege and prove pattern or practice of past violations but, rather, it was sufficient to allege there was controversy over whether past violation of law had occurred, in action brought by residents and group against city, alleging continuing violations of Brown Act open meeting provisions and public meeting requirements of city charter with respect to decisions concerning elec- tric utility's obligation under its franchise agreement with city to devote spending to placing overhead power lines underground, and seeking declaratory and injunctive re- lief. California Alliance for Utilities Safety and Education v. City of San Diego (App. 4 Dist. 199 7) 65 Cal.Rptr.2d 833, 56 Cal.App.4th 1024, 57 Cal.App.4th 67C, modified. Complaint of city residents and citizens group against city alleged enstence of actual controversy between par- ties for which declaratory relief was available and, thus, ripeness requirement was met in action brought by resi- dents and group, alleging continuing violations of Brown Act open meeting provisions and public meeting require- ments of city charter with respect to decisions to reduce electric utility's obligation under its franchise agreement %Kith city to devote spending to placing overhead power lines underground, and seeking declaratory relief; there was controversy between parties over whether city council met requirements of Act and charter in reducing utility's undergrounding obligation, public interest in resolving controversy was substantial, and allegations suggested that citizens and group would have difficulty in preventing future violations in absence of declaratory relief. Califor- nia Alliance for Utilities Safety and Education v. City of San Diego (App. 4 Dist. 1997) 65 Cal.Rptr.2d 833, 56 Cal.AppAth 1024, 57 Cal.App.4th 67C, modified. Part 2 PO DUTIES EXERCISED JOINTLY COBY UN IES OR OTHER AGENCIES CITIES,, CITI Section Chapterled ....................... ....... 55530 3,5. Crossing Guard maintenance Districts [Repealed Chapter 3.5 CROSSING GUARD 'MAINTENANCE DISTRICTS [REPEALED] Chapter 3.5 was repealed by Stats.1997, c. 489 (S.B.883), § 7 §§ 55530 to 55570. Repealed by Stats.IM, c. 489 (S.E.383), § 7 Historical and Statutory. Notes 1997 Legislation Short title and legislative findings, declarations and intent relating to Stats.1997, c. 489 (S.B.883), see Histori- cal and Statutory Notes under Government Code § 25332. Additions or oranges indicated by underline; deletions by asterisks 7 A GUIDE TO THE POLITICAL REFORM ACT OF 1974 (California's Conflict of Interest Law for Public Officials) October 14, 1996 B-1 A GUIDE TO THE POLITICAL REFORM ACT OF 1974 California's Conflict of Interest Law for Public Officials (Other Than Members of the Legislature, Constitutional Officers and the .insurance Commissioner) CALIFORNIA FAIR POLITICAL PRACTICES COMMISSION 428 J Street, Suite 800 P.O. Box 807 Sacramento, California 95804 (916) 322-5660 January 18, 1995 A GUIDE TO THE POLITICAL REFORM ACT OF 1974 CALIFORNIA'S CONFLICT OF INTEREST LAW FOR PUBLIC OFFICIALS (Other Than Members of the Legislature, Constitutional Officers and the Insurance Commissioner) INTRODUCTION The purpose of this pamphlet is to provide a brief overview of the conflict of interest provisions of the Political Reform Act.V The Political Reform Act requires public officials at all levels of government to publicly disclose their private economic interests and to disqualify themselves from participating in decisions in which they have a financial interest. This pamphlet is intended to help public officials understand and abide by the laws concerning disclosure and disqualification. It is also intended as a guide for members of the public who are concerned about maintaining impartial government decisionmaking. The pamphlet commences with an introduction to the Fair Political Practices Commission and the Political Reform Act. It then summarizes the disclosure and disqualification requirements for public officials, and explains how to seek assistance from the Fair Political Practices Commission concerning conflict of interest questions. The pamphlet concludes with a brief description of Government Code Section 1090 and other laws which relate to conflicts of interest, and suggests methods of obtaining additional information about those laws. The discussion in this pamphlet is necessarily general. It will answer most of the basic questions about the conflict of interest provisions of the Political Reform Act. If you have specific questions or problems, you should consult the statutes, regulations, court decisions and the opinions of the Fair Political Practices Commission. The Fair Political Practices Commission will provide assistance with specific questions about the Political Reform Act. You also may wish to refer the matter to the attorney for the agency in question or to a private attorney for consultation on specific requirements of the law. FAIR POLITICAL PRACTICES COMMISSION The Fair Political Practices Commission consists of five members, including a full-time chairperson. No more than three may be from the same political party. The chairperson and one member, who must be from different political parties, are appointed by the Governor. The three remaining commissioners are appointed, respectively, by the Attorney General, the Secretary of State and the Controller. Commissioners serve four-year terms and may not be reappointed once they have completed a full term. The Fair Political Practices Commission has primary responsibility for the impartial, effective administration of the Political Reform Act. The Commission adopts regulations to implement ,and clarify the Political Reform Act. These regulations are found in Title 2 of the California Code of Regulations, Section 18000 et seq. The Commission also issues opinions and advice letters, conducts seminars, prescribes forms, publishes manuals, issues reports, and enforces the requirements of the Political Reform Act. THE POLITICAL REFORM ACT The Political Reform Act was enacted by the people of the State of California by an initiative, known as Proposition 9, in 1974. This initiative statute was enacted to accomplish the following purposes: (a) Receipts and expenditures in election campaigns should be fully and truthfully disclosed in order that the voters may be fully informed and improper practices may be inhibited. (b) The activities of lobbyists should be regulated and their finances disclosed in order that improper influences will not be directed at public officials. (c) Assets and income of public officials which may be materially affected by their official actions should be disclosed and in appropriate circumstances the officials should be disqualified from acting in order that conflicts of interest may be avoided. (d) The state ballot pamphlet should be converted into a useful document so that voters will not be entirely dependent on paid advertising for information regarding state measures. (e) Laws and practices unfairly favoring incumbents should be abolished in order that elections may be conducted more fairly. (f) Adequate enforcement mechanisms should be provided to public officials and private citizens in order that this title will be vigorously enforced.2/ This pamphlet is a guide to the conflict of interest provisions of the Political Reform Act. HOW DOES THE POLITICAL REFORM ACT PREVENT CONFLICTS OF INTEREST? 1, By Disclosure: The Political Reform Act requires every public official to disclose all economic interests, such as investments, interests in real estate (real property), or sources of 2 income or gifts, which the official may possibly affect by the exercise of his or her official duties. Disclosure is made on a form called a "statement of economic interests."3/ 2. By Disqualification: If a public official has a conflict of interest, the Political Reform Act may require the official to disqualify himself or herself from making or participating in a governmental decision, or using his or her official position to influence or attempt to influence a governmental decision.4/ WHO MUST FILE STATEMENTS OF ECONOMIC INTERESTS UNDER THE POLITICAL REFORM ACT? The Governor, members of the Legislature, elected state and local officials, judges and commissioners of courts of the judicial branch of government, and all high ranking state and local officials must file statements of economic interests.5/ Other officials or employees of state and local government agencies also must file statements of economic interests if they are "designated" in a conflict of interest code adopted by the agency for which they work.6/ Each agency must adopt a conflict of interest code which designates all its officials or employees who make or participate in governmental decisions which could cause conflicts of interest.7/ Unpaid members of boards and commissions and consultants to state or local government agencies also may be . required to file statements of economic interests if they make or participate in making. governmental decisions which could affect private financial interests.8/ The disclosure required by a particular designated official or employee must be narrowly drawn to include only the kinds of economic interests he or she could significantly affect through the conduct of his or her office.9/ For example, the executive officer of an agency with extensive regulatory powers, through the exercise of his or her official position, could affect a broad range of private economic interests. The executive officer would thus be required to disclose all investments, interests in real property, sources of income, and business entities in which he or she is a director, officer, partner, trustee, employee or holds any position of management. In contrast,' an employee of the same agency whose duties are limited to reviewing contracts for supplies, equipment, materials, or services provided to the agency would be required to report only those interests he or she holds which are likely to be affected by the agency's contracts for supplies, equipment, materials, or services. The employee would report sources of income and business entities in which, he or she has an investment or is a director, officer, partner, trustee, employee or holds any position of management, if the businzss entity or source of income is of the type which within the previous two years has provided supplies, equipment, materials, or services to the agency. Each government agency has a list of all agency officials and employees who must file statements of economic interests. 10/ Anyone may inspect the conflict of interest code and this list. The Commission's Technical Assistance Division provides assistance to public officials who have questions regarding the forms for disclosure of economic interests. Questions about the adoption or amendment of an agency's conflict of interest code may also be addressed to the Commission's Technical Assistance Division. ARE STATEMENTS OF ECONOMIC INTERESTS AVAILABLE TO THE PUBLIC? Statements of economic interests are public records. Any member of the public must be permitted to inspect and copy any statement during normal business hours. No more than 10 cents per page may be charged for copies. In addition, a $5 retrieval fee per request may be charged for statements which are five or more years old. A request for more than one report or statement at the same time is considered a single request. No other conditions may be imposed on inspection and copying, No one may be required to identify himself or herself or sign anything in order to be permitted to inspect or copy statements.I l/ Statements of economic interests must be kept on file by the official's or employee's agency and made available upon request. 12/ Statements of certain officials, including elected state officials, members of the Legislature, judges, court commissioners, most high ranking state officials, many elected local officials, planning commissioners, city and county chief administrative officers, city managers, city attorneys, county counsel and city and county treasurers are also available at the office of the Fair Political Practices Commission.l3/ WHO MAY BE DISQUALIFIED UNDER THE POLITICAL REFORM ACT? The disqualification requirements of the Political Reform Act apply to all elected state and local government officials, to all appointed state or local government officials, and to all governmental agency employees, except judges and court commissioners. 14/ Unpaid members of boards or commissions and consultants to state or local government agencies who, on an ongoing basis, play a significant role in the decisionmaking process may also be required to disqualify themselves under the Act when faced with a decision that could affect their private economic interests.15/ WHAT IS A CONFLICT OF INTEREST? A public official or employee has a conflict of interest when all of the following occur: 1. The official makes, participates in, or uses his or her official position to influence a governmental decision; 2. It is foreseeable that the decision will affect the official's economic interest; 3. The effect of the decision on the official's economic interest will be material; 4. The effect of the decision on the official's economic interest will be distinguishable from its effect on the public generally. 4 Participation in a Governmental Decision: The first component of a conflict of interest is whether the official makes, participates in, or uses his or her official position to influence a governmental decision. Generally speaking, a governmental decision is any decision made by a government body or by a government official or employee in his or her official capacity. Governmental decisions include: decisions on ordinances, regulations and resolutions; decisions on contract awards, purchases and leases; decisions on hiring, firing and personnel actions; decisions on land use, zoning,'redevelopment plans, permits and variances; and decisions on any other matter which may come before a state or local government agency. 16/. ' A public official makes a governmental decision when he or she, acting within the authority of his or her office, does any of the following: ■ Votes on a matter. ■ Appoints a person. ■ Obligates or commits his or her agency to any course of action. ■ Enters into any contractual agreement on behalf of his or her agency. ■ Determines not to act in any of the ways described above, unless that determination is made because the official has disqualified himself or herself due to a conflict of interest. 17/ For example, a public official makes a governmental decision when he or she votes as a member of a board, commission or council on any governmental decision, regardless of the outcome of the vote. Whether the official votes for or against the action, or for or against his or her economic interest, the official makes a governmental decision when he or she votes on the decision. In addition, public officials, including heads of departments, directors of agencies, and employees of state or local government agencies, make governmental decisions when they take or authorize any official action on behalf of their agencies. A determination that an agency will not take a particular action is also a governmental decision. A public official participates in a governmental decision when he or she responds to comments, takes part -in discussions, advises or makes recommendations to a decisionmaker, whether or not the decisionmaker ultimately follows the official's advice, 18/ A consultant who is under contract with a government agency to make decisions on behalf of the agency may be a public official. 19/ Whether a consultant makes a governmental decision depends on the duties of the consultant. Specific questions on this subject should be addressed to the Commission staff. A public official who negotiates on behalf of his or her agency with any other public or private agency or with any person outside his or her agency concerning a governmental decision participates in that decision.20/ An official whose actions are solely ministerial, secretarial, clerical or manual does not make or participate in governmental decisions.21/ 5 A public official influences or attempts to influence a governmental decision when the official appears before any governmental agency in his or her official capacity and urges that a particular governmental decision be made. Contacts with any individual 'Within•a government agency for the purpose of•urging a particular decision or result are also considered influencing or attempting; to influence a governmental decision.22/ A public official can sometimes influence a governmental decision when acting in a private, as well as -in an official capacity. For example, an official who appears as the representative of a third party before the official's own agency is influencing or attempting to influence a governmental decision. This would also be true if the official appears before an agency subject to the appointive or budgetary control of the official's agency to represent a third party.23/ The following actions by an official are not considered influencing or attempting to influence a. governmental decision: ■ Appearing before any agency, including his or her own agency, in the same manner as any other member of the general public, to represent only himself or herself on a matter affecting real property or a business entity wholly owned by the official, his or her spouse or dependent children.24/ ■ Appearing; as a private citizen before an agency that is independent of the appointive or budgetary control of the official's own agency. The official must not act or purport to act as the representative of his or her own agency, or use his or her agency's official stationery in any communications.25/ ■ Communicating with the general public or the press.26/ Foreseeability: The second component of a conflict of interest is whether it is foreseeable that the decision will affect the official, the official's immediate family, or the official's economic interest. For example: The decision affects the official's personal financial status, or that of his or her spouse or dependent children.27/ This does not apply, however, to decisions which affect the official's own government salary. It applies to any decision which affects the government salary of an official's spouse only if the decision is to hire, fire, promote, demote or discipline the spouse, or to set a salary for the spouse that is different from salaries paid to other employees in the same job classification or position.28/ ■ The decision affects a business entity located in, doing business in, owning real property in, or planning to do business in the official's jurisdiction, and the official, or his or her spouse or dependent child has an investment in the business worth $1,000 or more.29/ Investments in a business entity include: ownership of stock, bonds, or commercial paper; 0 a general or limited partnership interest; or any other form of ownership interest in a business entity. Investments do not include: bank accounts; interests in mutual funds, money market funds, or insurance policies; or government bonds or securities.30/ Business entities include: corporations; partnerships; joint ventures; sole proprietorships; and any other type of enterprise operated for a profit. A nonprofit organization is not a business entity. 31 ■ The decision affects real estate (real property,) located in the official's jurisdiction and the official, or his or her spouse or dependent child, has an interest of $1,000 or more in -that real estate.32/ Interests in real property include: ownership (equity); deeds of trust (mortgages); leaseholds; options to buy; and joint tenancies.33/ A month-to-month lease is not an interest in real property.34/ ■ The decision affects a person, business entity, or nonprofit entity located in, doing business in, owning real property in, or planning to do business in the official's jurisdiction from which the official has received income of $250 or more, or the official's spouse has received income of $500 or more, in the past 12 months.35/ With certain exceptions, income includes: salaries; commissions; rents; payments received for goods or services (including payments for sale of a home, automobile or investment); loans (including loans previously made but still outstanding); and all other types of payments.36/ Income means gross income or payments received, rather than net income, profits or taxable income. Income does not include: the official's own government salary; inheritances; dividends, interest or premiums from publicly traded stock, mutual funds, bank accounts, credit unions or insurance policies; alimony or child support; loans of $10,000 or less from banks, credit unions, or credit cards on terms generally available to the public; mortgages on a principal residence on terms generally available to the public, loans from family members; or most pensions.37/ ■ The decision affects a person, business entity, or nonprofit entity from whom the official has received gifts of $280 or more in the past 12 months.38/ This includes gifts from sources inside and outside the official's jurisdiction, except for gifts from specified family members.39/ Gifts provided to the official's spouse or children may be considered gifts to the official under some circumstances. 40/ ■ The decision affects a business entity, other than a nonprofit organization, in which the official is a director, officer, partner, trustee, employee or holds a position of managementAl/ In order to create a conflict of interest, the effect of a governmental decision on an official's economic interest must be reasonably foreseeable.42/ An effect on an official's economic interest is foreseeable when there is a substantial likelihood that it will ultimately occur as a result of a governmental decision. Even during the preliminary phases of a decision, an official must consider whether the end result of a decision is likely to affect his or her economic interests. An effect does not have to be certain to be foreseeable; however, if an effect is a mere possibility, it is not foreseeable.43/ Materiality: The third component of a conflict of interest is whether the effect of the decision on the official's economic interest will be material.44/ It is, usually necessary to estimate the dollar value of the effect of a decision on the official's economic interest to determine whether the effect is material. Specific circumstances under which an effect is material are set forth in the Commission's regulations.45/ An effect of $250 or more in any 12 -month period on the personal income, assets (other than real estate), or out-of-pocket expenses of the official, or of his or her spouse or dependent children, is material.46/ For purposes of determining whether there is a conflict of interest, it does not matter whether the financial effect increases or decreases the personal income, assets, or expenses. When an official has an investment in, or receives income from, a business entity, it is necessary to consider how governmental decisions would affect the business entity, An official may be disqualified from participating in a decision even though the decision would not affect the value of his or her investment or the amount of income he or she receives.47/ Whether an effect on a business entity will be considered material depends on the financial size of the business entity.48/ For example, an effect of only $10,000 on the gross revenues or assets of a small business is material,49/ while a $1 million effect on the gross revenues or assets of a Fortune 500 company is material.5.0/ Similar dollar tests apply to individuals and nonprofit entities which have been a source of income or gifts.51/ A similar dollar test also applies to effects on real property when the property is not directly affected by the decision. Whether an effect on such real property will be considered material depends on its distance from the.property which is the subject of the decision and the dollar amount of the effect. For example, property within 300 feet of the property which is the subject of the decision is materially affected unless there is no financial effect. Property located within a 300 - 2500 foot radius of the property which is the subject of the decision is materially affected if its fair market value is increased or decreased by $10,000, or if its rental value is increased or decreased by $1,000 per 12 month period.52/ The effect of a decision on an official's leasehold interest in real property is material if it will increase or decrease the amount of rent by $250 or 5 percent during any 12 month period, or if the decision will significantly affect the use or enjoyment of the property or its legally allowable use.53/ Sometimes it is difficult to give a dollar value to the effect of a governmental decision. In such cases, it is necessary to consider whether the decision could significantly affect the official's economic interests.54/ For example, the effect may be material if the official's receipt of income from a private source is directly related to the decision, 55/ In special situations, an effect is considered material regardless of its dollar value, These situations include the following: ■ A person or business entity in which the official has an investment interest worth $1,000 or more, or which is a source of income of $250 or more to the official in the last 12 months, is directly involved in a decision before the official's agency.56/ A person or business entity is directly involved in a decision before an official's agency if it is the subject of the proceeding or initiates the proceeding by filing an application, claim, appeal or similar request.57/ ■ The decision would affect the zoning, annexation, sale, lease, actual or permitted use of, or taxes or fees imposed on real property in which the official has an interest of $1,000 or more.58/ ■ The decision is to designate the survey area, select the project area, adopt the preliminary plan, form a project area committee, certify the environmental document, adopt the redevelopment plan, add territory to the redevelopment area, or rescind or amend any of these decisions; and the official has an interest in real property in the boundaries, or the proposed boundaries of the redevelopment area.59/ The "Public Generally" Exception: The fourth component of a conflict of interest is whether the effect of the decision on the official's economic interest will be distinguishable from its effect on the public generally.60/ An official does not have a conflict of interest if the effect of a governmental decision on the official or his or her economic interest is indistinguishable from the effect on the public generally. For the "public generally" exception to apply, a decision must affect the official's interests in substantially the same manner as it would affect a significant segment of the public. Regulation 18703 sets,out two types of tests to determine what constitutes a "significant segment" of the public generally. Under the percentage test, ten percent of the population, property owners; or home owners in the jurisdiction (or the district the official represents) is considered a significant segment.61/ In the alternative, the exception will apply if the decision will affect 50 percent of all businesses in the jurisdiction or the district the official represents, so long as the segment is composed of persons other than a single industry, trade, or profession. Regulation 18703 also contains a raw -number standard. If the decision will affect 5,000 individuals, it will affect a significant segment. 9 In September 1993, the "public generally" exception was expanded to include a'variety of new exceptions, each dealing with a different factual situation. ■ Regulation 18703(b) codifies a special rule for rates, assessments, and similar decisions.62/ The exception allows public officials whose economic interests are subject to rates, assessments, etc., to participate in decisions setting or modifying the rate or assessment so Tong as the changes have a uniform or proportionate financial effect throughout the jurisdiction or throughout a significant segment of the jurisdiction. ■ Regulation 1870j(c) provides an exception applicable to states of emergency. The financial effect of a governmental decision on an official subject to a state of emergency is indistinguishable from its financial effect on the public generally if the decision will affect the official's interests in substantially the same manner as other persons subject to a state of emergency.63/ ■ Regulation 18703.2 provides an exception for decisions affecting industries, trades or professions, under some circumstances. For example, where an industry, trade, or profession is a predominant industry, trade, or profession in the official's jurisdiction, the "public generally" exception may apply. ■ Regulation 18703.3 provides an exception for persons appointed to represent specific economic interests such as election districts, homeowners, tenants, etc., so long as specific criteria are met.64/ This exception has been applied to some local private industry councils and mobile home rent control boards. Public Generally Rule for Small Jurisdictions: Additionally, in small jurisdictions (population of 25,000 or less and geographic area of 10 square miles or less) the effect of a decision on an official's principal residence is deemed to be no different from its effect on the public generally if all the following requirements are also met: ■ The public official is required to reside within the jurisdiction. ■ The public official, if he or she is an elected officer, has been elected in an at -large election. ■ The decision does not have a direct effect (as provided in Regulation 18702.1 (a) (3)) on the public official's principal residence. ■ The principal residence is more than 300 feet from the boundaries of the property which is the subject of the decision. 10 ■ The principal residence is located on a parcel of land of one quarter acre or less, or a residential lot not larger than 125 percent of the median residential lot size for the jurisdiction. 65/ In summary, there are four questions to ask in determining whether an official has a conflict of interest: 1. Will the official make, participate in, or use his or her official position to influence a governmental decision? 2. Is it reasonably foreseeable that the decision will affect the official, the official's immediate family, or an economic interest of the official? 3. Will the effect of the decision on the official's economic interest be material? 4. Will the effect of the decision on the official's economic interest be distinguishable from its effect on the public generally? The answer to each of these four questions must be "yes" for the official to be disqualified from a decision because of a conflict of interest. WHAT SHOULD A PUBLIC OFFICIAL WHO HAS A CONFLICT OF INTEREST DO? When a public official determines that a particular governmental decision will foreseeably and materially affect his or her economic interest, in a manner that is different from the effect on the general public, the official has a conflict of interest. The official is not counted for purposes of establishing a quorum, and must not vote on, make, participate in any way in, or attempt to influence the decision.66/ This is called disqualification. When an official disqualifies himself or herself from a governmental decision because of a conflict of interest, the reason for the disqualification must be announced (in the case of a member of a voting body), or disclosed in writing (in the case of all other officials).67/ IS A GOVERNMENTAL DECISION VALID IF IT WAS MADE BY AN OFFICIAL WHO HAD A CONFLICT OF INTEREST? A governmental decision is not automatically invalidated by the participation of an official who had a conflict of interest. However, it may be set aside by a court if the court determines that an official who made the decision had a conflict of interest, that without that official's actions the decision would not have been made, and that setting aside the decision will not cause injury to innocent persons.68/ 11 * I, MAY A PUBLIC OFFICIAL EVER MARE A DECISION IN WHICH HE OR SHE HAS A DISQUALIFYING FINANCIAL INTEREST? The law recognizes a type of "rule of necessity" for those rare situations in which a public official is legally required to make or participate in a decision, even though the official has a � disqualifying financial interest.69/ This rule is different from the common law rule of necessity." It applies only when: (1) no one else has the legal authority to make or participate in the decision/ (2) the existence and nature of the official's financial interest is put on the public record, and (3) the official does not try to influence the decisions of others outside of a public meeting.71/ In such a case, the Political Reform Act allows the official to make or participate in the decision. Pursuant to this rule, an official is not legally required to make or participate in a decision simply because the official's vote is needed to break a tie, or because the official is needed for a quorum as a result of some other official's absence.72/ However, if so many members of an agency are disqualified because of conflicts of interest that no decision is possible because a quorum of qualified members cannot be convened, there is a procedure for allowing some officials who have a disqualifying financial interest to vote. In that case, the additional number of officials necessary to constitute a quorum may be selected by drawing lots, or through some other method of random selection.73/ The officials selected may vote and make statements or ask questions during a public meeting.74/ WHAT ARE THE PENALTIES FOR VIOLATION OF THE CONFLICT OF INTEREST PROVISIONS OF THE POLITICAL REFORM ACT? The Fair Political Practices Commission can bring an administrative action against an official who has violated the disclosure or disqualification requirements of the Political Reform Act, and may impose administrative penalties of up to $2,000 for each violation.75/ An official who violates the Act may be subject to a civil lawsuit, in which a court may impose a fine.76/ A willful violation of the Act is also a misdemeanor, punishable by a fine and/or by imprisonment; it also may result in the official being ineligible to run for public office for four years.77/ The fine for a willful conflict of interest violation may be up to $10,000; the fine for willfully failing to disclose an economic interest may be up to $10;000 or three'times the amount not disclosed, whichever is greater.78/ These penalties apply to violations of the disclosure requirements of the Act by any public officia1.79/ However, they do not apply to violations of the disqualification provisions of the Act by the Governor, other constitutional officers or members of the Legislature. 80/ They do apply to disqualification violations by all other public officials. HOW CAN A PUBLIC OFFICIAL FIND OUT IF HE OR SHE HAS A CONFLICT OF INTEREST? When a public official suspects that he or she may have a conflict of interest in an upcoming decision, the attorney for the official's agency should be consulted. The official can also ask the Legal Division of the Fair Political Practices Commission for advice. Requests for 12 written advice are generally answered within 21 working days, 81/ although written or telephone advice may be given more quickly in urgent situations. If an official poses a question which is unusually complex, significant or unique, the full Commission may issue an opinion, although this process takes longer.82/ The Commission provides advice only about the Political Reform Act; the Commission will not answer questions about Government Code Section 1090 or other laws which are not part of the Political Reform Act. If the Commission advises an official in writing that disqualification is not necessary, and the official has truthfully provided all material facts, the official is provided with immunity against any administrative action brought by the Commission arising from the same conflict of interest charges. Reliance on the written advice also serves as evidence of good faith conduct in any civil or criminal proceeding based on the same charges. 83/ The Commission, may only issue opinions or give advice regarding conflicts of interest to the official who may have to be disqualified, or to the official's authorized representative. 84/ Advice about specific situations will not be given to members of the public, or to other persons who are interested in whether or not an official should be disqualified from the specific decision. In addition, the Commission will not issue an opinion or provide advice about an official's past conduct. These questions are referred to the Enforcement Division of the Fair Political Practices Commission. Whether a public official has committed a violation of the Political Reform Act is determined after investigation by the Commission's Enforcement Division. All Commission regulations, opinions and enforcement decisions are published by the California Continuing Education of the Bar, Virtually all advice requests and advice letters are public records.85/ Opinions, significant advice letters and enforcement cases are summarized in the Commission's Bulletin which is distributed regularly. Copies of opinions, advice letters and enforcement decisions can be obtained from the Commission. WHAT SHOULD YOU DO IF YOU SUSPECT THAT A PUBLIC OFFICIAL HAS VIOLATED THE CONFLICT OF INTEREST PROVISIONS OF THE POLITICAL REFORM ACT? Complaints concerning violations of the conflict of interest provisions of the Political Reform Act should be made to the local district attorney or the Enforcement Division of the Fair Political Practices Commission. CAMPAIGN CONTRIBUTIONS AND GOVERNMENTAL DECISIONMAKING. The Political Reform Act also contains Government Code Section 84308, a provision which deals specifically with conflicts of interest and campaign contributions. Government Code Section 84308 is discussed in detail in a pamphlet entitled "A Guide to Government Code Section 13 84308 --Conflicts of.Interest and Campaign Contributions. This pamphlet is available from the Fair Political Practices Commission. GOVERNMENT CODE SECTION 1090 AND OTHER LAWS, Government Code Section 1090 and other laws not included in the Political Reform Act apply to specific situations where public officials may have conflicts of interest. For example, Government Code Section 1090 applies to conflicts of interest involving contracts made by officials of public agencies, and Health and Safety Code Section 33130 applies only to certain redevelopment situations. The Fair Political Practices Commission has no authority to advise public officials about the application of these laws, or to enforce them: That responsibility belongs to city attorneys, county counsel other public agency attorneys, district attorneys, and the State Attorney General. 14 NOTES (All statutory references are to the Government Code unless otherwise specified. Commission regulations appear at 2 California Code of Regulations, Sections 18000-18954.) 1/ Sections 81000-91015. 2/ Section 81002. 3/ Art. 2 (commencing with Section 87200), Art. 3 (commencing with Section 87300), and Art. 5 (commencing with Section 87500), Ch. 7, Title 9, govern disclosure. 4/ Art. 1 (commencing with Section 87100), Ch. 7, Title 9, governs disqualification. 5/ Section 87200. 6/ Art. 3 (commencing with Section 87300), Ch. 7, Title 9. 7/ Section 87300. 8/ See, Commission on Cal State Gov. Organization v. Fair Political Practices Com. (1977) 75 Ca1.App.3d 716; In re Siezel (1977) 3 FPPC Ops. 62; In re Leach (1978) 4 FPPC Ops. 48. 9/ Regulation 18730(b)(3); HUs v. Wood (1979) 25 Cal.3d 772. 10/ Section 87302(x). 11/ Section 81008. 12/ Section 81009. 13/ Section 87500. 14% Sections 82048 and 87100. 15/ Section 82019; Regulation 18700; In re Maloney (1977) 3 FPPC Ops. 69. 16/ Section 87100; Sections 18700 and 18700.1. 17/ Regulation 18700(b), 18/ Regulation 18700(c). 19/ Regulation 18700(c)(2). 15 v f A . 20/ Regulation 18700(c)(1). 21/ Regulation 18700(d), 22/ Regulation 18700.1. 23/ Regulation 18700.1. 24/ Regulation 18700.1 (b)(1). 25/ Regulation 18700.1 (c). 26/ Regulation 18700.1 (b)(2). 27/ Section 87103. 28/ Section 82030(b)(2); Regulation 18702.1(c)(1). 29/ Section 87103(a). 30/ Section 82034. 31/ Section 82005. 32/ Section 87103(b). 33/ Section 82033. 34/ Regulation 18233. 35/ Section 87103(c)._ 36/ Section 82030(a). 37/ Section 82030(b). 38/ Section 87103(e). 39/ Sections 82028 and 82030(a). 40/ Regulation 18944. 41/ Sections 87103(d) and 82005. 16 42/ Section 87103. 43/ In re Thorner (1975) .1 FPPC Ops. 198; Witt v. Morrow (1977) 70 Cal.App.3d 817; Downey Cares v. Downey Community Development Commission (1987) 196 Cal.App.3d 983. 44/ Section 87103. 45/ Regulations 18702 through 18702.6. 46/ Regulation 18702.1(x)(4). 47/ Witt v. Morrow (1977) 70 Cal.App.3d 817. 48/ Regulation 18702.2. 49/ Regulation 18702.2(g). 50/ Regulation 18702.2(a). 51 / Regulations 18702.5 and 18702.6. 52/ Regulation 18702.3. 53/ Regulation 18702.4. 54/ Regulation 18702(b). 55/ Regulation 18702.1(d). 56/ Regulation 18702.1(a)(1) and (2). 57/ Regulati6n 18702.1(b). 58/ Regulation 18702.1(a)(3). 59/ Regulation 18702.1(a)(3). 60/ Section 87I03; Regulation 18703; In re Legan (1985) 9 FPPC Ops. 1. 61/ The exception may be applied against an election district rather than the jurisdiction as a whole. For example, 10 percent of the official's election district would be considered a significant segment. 17 62/ Regulation 18703(b); Hk nn Advice Letter, No. A-94-192. 63/ Regulation 18703(c), jCQ}n Advice Letter, No. A-93447. 64/ Regulation 18703.3; Larsen Advice Letter, No. I-94-110. 65/ Regulation 18703.1 66/ Section 87100; In re_ Binadn (1975) 1 FPPC Ops. 54. 67/ Regulation 18700(b)(5). 68/ Section 91003(b); Downe ar .s v. (1987) 196 Ca1.App.3d 983. 69/ Section 87101. 70/ Affordable Housing Alliance v. Fin tgin (1986) 179 Cal.App.3d 484; In re Hudson (197 8) 4 FPPC Ops. 13. 71/ Regulation 18701; In g Brown (1978) 4 FPPC Ops. 19. 72/ Section 87101; Regulation 18701(c). 73/ n re Hudson (1978) 4 FPPC Ops. 13. 74/ Regulation 18701 (b)(4). 75/ Section 83116. 76/ Sections 91005(b) -and 91005.5. 77/ Sections 91000 and 91002. 78/ Section 91000(b). 79/ Section 9 10 13 also imposes late filing fees on officials who fail to file timely statements of economic interests. 80/ Section 87102. 81/ Section 83114(b); Regulation 18329. 18 82/ Section 83114(a); Regulations 18320-18326. 83/ Section 83114(b). 84/ Section 83114; Regulations 18320 and 18329. 85/ Sections 6250-6265. w